[Hijab Ban verdict] Why the Karnataka High Court held that wearing hijab is not an essential religious practice of Islam

In a decision that significantly impacts female Muslim students in State colleges, the Karnataka High Court on Tuesday held that wearing of hijab is not an essential religious practice of Islam..The Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and JM Khazi held that the petitioners "miserably failed" to prove that wearing of hijab was an inviolable practice of Islam, much less an essential one..Before delving into verses of the Quran to trace the essentiality of wearing of hijab, the Court spoke of the Constitution's "positive secularism" by virtue of which the State does not discriminate anyone on the basis of religious identities per se.It also interestingly held that the freedom of religion guaranteed under Article 25 of the Constitution is placed on a comparatively lower pedestal in relation to other fundamental rights.A person who seeks refuge under Article 25, the Bench said, has to demonstrate not only essential religious practice, but also its engagement with the constitutional values that are illustratively mentioned in the Supreme Court's verdict in Indian Young Lawyers Association v State of Kerala. In that judgment, the Court had allowed the entry of women into the Sabarimala Temple in Kerala..Essential Religious Practices: The Supreme Court needs to urgently reconsider its jurisprudence on religious freedom.Quran does not mandate wearing of hijab or headgear for Muslim women.At the outset of the discussion, the Court held that just because a practice has been carried on since time immemorial or is grounded in religious texts, does not lend to it constitutional protection unless it passes the test of essentiality..To come to its conclusion, the Court relied on The Holy Quran: Text, Translation and Commentary by Abdullah Yusuf Ali, which was cited by the Supreme Court as an authoritative source on the holy book in the Shayara Bano case, in which the practice of triple talaq was struck down..At this juncture, we cannot resist our feel to reproduce Aiyat 242 of the Quran which says: "It is expected that you will use your commonsense"Karnataka High Court.Before delving into the suras of the Quran, the Court said,"...we feel it appropriate to quote what Prophet had appreciably said at sūra (ii) verse 256 in Holy Quran: ‘Let there be no compulsion in religion…’"It then made a note of various suras on wearing of hijab and what Ali said in footnote 3760 to verse 53:“…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...”It, therefore, concluded that the Holy Quran does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the suras is only directory, because of absence of prescription of penalty or penance for not wearing hijab, the Court said..Ali's commentary on the origins of wearing hijab also weighed with the Court, which noted,"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, what is not religiously obligatory cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts, the Bench held..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.Karnataka High Court.It further held,"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.".On freedom of conscience.The Court then sought to address the contention of the petitioners that regardless of their right to religion, wearing of hijab was protected by their freedom of conscience guaranteed under Article 25. The petitioners had relied on the Supreme Court's judgment in Bijoe Emmanuel, by which it had permitted Jehovah's witness to refrain from singing the National Anthem, upholding their freedom of conscience.On this, the Court held,"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...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.".It also stated that Bijoe Emmanuel did not demarcate the boundaries between ‘freedom of conscience’ and ‘right to religion’ presumably because the overt act of the students in respectfully standing up while National Anthem was being sung transcended the realm of their conscience and took their case to the domain of religious belief. "Thus, BIJOE EMMANUEL is not the best vehicle for drawing a proposition essentially founded on freedom of conscience," the judgment stated..The Court also held that the views of other High Courts on hijab being an essential practice do not apply to the facts of the present case..Petitioners miserably failed to show that wearing of hijab was essential to Islam.The Court expressed its surprise at the lack of evidence brought forth by the petitioners to back their claims of hijab being an essential aspect of Islam. "The material before us is extremely meager and it is surprising that on a matter of this significance, petition averments should be as vague as can be. We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners’ side," the judgment said.Further, it was noted,"Since how long all the petitioners have been wearing hijab is not specifically pleaded. The plea with regard to wearing of hijab before they joined this institution is militantly absent...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...".It finally opined that it is not that if wearing hijab is not adhered to, those not wearing hijab become sinners, and Islam loses its glory..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’.Karnataka High Court.[Read Judgment]