Hijab Judgment – Points for the consideration

The cultural practice and religious practice are not the same concepts. Wearing Hijab is not mandatory (Farz) but only recommendatory in Islam. Therefore, Wearing Hijab is not an essential religious practice under Islam. The court cannot look beyond the religious doctrines to decide ‘whether a practice amounts to essential religious practice.[1]’

 

Personal Views[2]

(i)                  This Judgment may soon be challenge in Hon’ble apex court and may get clubbed with Sabrimala case which is already pending before larger bench of Apex court.

 

(ii)                There are various ways to look at the proposition cited in this judgment. It is not merely related to Right to perform essential religious practice but also Freedom of conscience and Freedom of expression. The essential religious practice could not be proved and freedom of conscience never pleaded with particulars such as since when they wearing it, etc.

Analysis

On Religion & Article 25

(I)                 Whichever be the society, ‘you can never separate social life from religious life’ said Alladi Krishnaswami Aiyar during debates on Fundamental Rights in the Advisory Committee (April 1947).

 

(II)               The English word ‘religion’ has different shades and colours. It does not fully convey the Indian concept of religion i.e., ‘dharma’ which has a very wide meaning, one being ‘moral values or ethics’ on which the life is naturally regulated.

(III)             Article 25 of our Constitution begins with the restriction and further incorporates a specific provision i.e., clause (2) that in so many words saves the power of State to regulate or restrict these freedoms.

 

(IV)             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 the constitutional values that are illustratively mentioned at paragraph 291 of Sabrimala Judgment, (2019) 11 SCC 1. It’s a matter of concurrent requirement. It hardly needs to be stated, if essential religious practice as a threshold requirement is not satisfied, the case does not travel to the domain of those constitutional values. The essential part of a religion is primarily to be ascertained with reference to the doctrine of that religion itself.

On History of Hijab & Islam

(V)               There are four sources for Islamic law- (i) Quran (ii) Hadith (iii) Ijma (iv) Qiyas. Degrees of obedience: Islam divides all actions into five kinds which figure differently in the sight of God and in respect of which His Commands are different. This plays an important part in the lives of Muslim. (i) First degree: Fard. Whatever is commanded in the Koran, Hadis or ijmaa must be obeyed.Wajib. Perhaps a little less compulsory than Fard but only slightly less so.(ii) Second degree: Masnun, Mandub and Mustahab: These are recommended actions.(iii) Third degree: Jaiz or Mubah: These are permissible actions as to which religion is indifferent (iv) Fourth degree: Makruh: That which is reprobated as unworthy (v) Fifth degree: Haram: That which is forbidden.

 

(VI)             History of mankind is replete with instances of abuse and oppression of women. The region and the times from which Islam originated were not an exception. The era before the introduction of Islam is known as Jahiliya-a time of barbarism and ignorance. 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. This becomes evident from Ali’s footnote 3768 to verse 60 which concludes with the following profound line “Alas! We must ask ourselves the question: ‘Are these conditions present among us today?’” Thus, it can be reasonably assumed that the practice of wearing hijab had a thick nexus to the socio-cultural conditions then prevalent in the region. The veil was a safe means for the women to leave the confines of their homes. Ali’s short but leading question is premised on this analysis. 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.

 

(VII)           Hijab is a veil ordinarily worn by Muslim women, is true. Its origin in the Arabic verb hajaba, has etymological similarities with the verb “to hide”. Hijab nearly translates to partition, screen or curtain. There are numerous dimensions of understanding the usage of the hijab: visual, spatial, ethicaland moral. This way, the hijab hides, marks the difference, protects, and arguably affirms the religious identity of the Muslim women. This word as such is not employed in Quran, cannot be disputed, although commentators may have employed it. Indian jurist Abdullah Yusuf Ali referring to sūra (xxxiii), verse 59, at footnote 3765 in his book states: “Jilbāb, plural Jalābib: an outer garment; a long gown covering the whole body, or a cloak covering the neck as bosom.”. In the footnote 3760 to Verse 53, he states: “…In the wording, note that for Muslim women generally, no screen or hijab (Purdah) is mentioned, but only a veil to cover the bosom, and modesty in dress. The screen was a special feature of honor for the Prophet’s household, introduced about five or six years before his death...” Added, in footnote 3767 to verse 59 of the same sura, he opines: “This rule was not absolute: if for any reason it could not be observed, ‘God is Oft. Returning, Most Merciful.’…” Thus, 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.

 

(VIII)         The Holy Quran does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the sūras, is only directory, because of absence of prescription of penalty or penance for not wearing hijab, 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. There is a laudable purpose which can be churned out from Yusuf Ali’s footnotes 2984, 2985 & 2987 to verses in Sūra xxiv (Nūr) and footnotes 3764 & 3765 to verses in Sūra xxxiii (Ahzāb).

 

(IX)             If everything were to be essential to the religion logically, this very concept would not have taken birth. It is on this premise the Apex Court in SHAYARA BANO, proscribed the 1400 year old pernicious practice of triple talaq in Islam. What is made recommendatory by the Holy Quran cannot be metamorphosed into mandatory dicta by Ahadith which is treated as supplementary to the scripture. A contra argument offends the very logic of Islamic jurisprudence and normative hierarchy of sources. This view gains support from paragraph 42 of SHAYARA BANO which in turn refers to Fyzee’s work.

 

On Freedom of Conscience

 

(X)               Conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars. Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief. Freedom of conscience is in distinction to right to religion as was clarified by Dr. B.R.Ambedkar in the Constituent Assembly Debates. There is scope for the argument that the freedom of conscience and the right to religion are mutually exclusive. Even by overt act, in furtherance of conscience, the matter does not fall into the domain of right to religion and thus, the distinction is maintained. No material is placed before us for evaluation and determination of pleaded conscience of the petitioners. They have not averred anything as to how they associate wearing hijab with their conscience, as an overt act. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression. Pleadings at least for urging the ground of conscience are perfunctory, to say the least.

 

Conclusion

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. 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’.

 

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[1] WRIT PETITION NO. 2347/2022, Karnataka High Court

[2] Shubham Budhiraja, Shubhambudhiraja02@gmail.com  (LLB, ACS, BCOM(H))