In the Karnataka High Court, a churn is taking place as to whether wearing the Hijab can be held as an ‘essential religious practice’ of the Islamic faith. Arguments from both sides have cited different sources and interpretations of the Quran. Senior Advocate Devdatt Kamat who was appearing on behalf of the petitioners has quoted The Holy Quran’s translation as available on the website Quran.com.
On February 22, Advocate General Prabhuling Navadgi argued that the interpretation cited by the petitioners was from a website which is created by a few volunteers and is not the authorised version of it. The court has taken the reference of previous cases including the Shah Bano case, Ismail Faruqui case (which dealt with the acquisition of Babri structure) and others to verify as to which interpretation of the Quran has been authorised by Indian Judicial courts in earlier cases.
SA Devadatt Kamat’s arguments
On the first day of hearing of the case February 08, Senior Advocate Devdatt Kamat appeared before the court while referring to the Kerala High Court judgement on the allowance of Hijabs in schools. Quoting from paragraph 13 of the judgement, “Kamat read, “Religious practice cannot be tested on the secular thoughts or any other consideration outside the religious authority,” Arguing over what constitutes an essential practice, he said that it should be determined on religious beliefs alone and not based on secular notions. Kamat then referred to the verses from the Quran which talk about wearing a veil as described by the interpretation given on the website Quran.com.
Kamath: Source is From https://t.co/QFtOh2FnT6 and it is said to be authentic Quran.
— Live Law (@LiveLawIndia) February 8, 2022
#HijabRow #KarnatakaHijabRow
In Surah 24 verse 31, it has been mentioned that women should be let to draw their veils over their chests, and not reveal their ‘hidden adornments’ to ‘guard their chastity.’
An interpretation of the verse by Dr Mustafa Khatab says, “And tell the believing women to lower their gaze and guard their chastity, and not to reveal their adornments except what normally appears. Let them draw their veils over their chests, and not reveal their ˹hidden˺ adornments except to their husbands, their fathers, their fathers-in-law, their sons, their stepsons, their brothers, their brothers’ sons or sisters’ sons, their fellow women, those ˹bondwomen˺ in their possession, male attendants with no desire, or children who are still unaware of women’s nakedness. Let them not stomp their feet, drawing attention to their hidden adornments. Turn to Allah in repentance all together, O believers, so that you may be successful.”
Kamat refers to Verse 24.31 of Holy Quran. The prescription of head scarf he is specifically prescribed in Holy Quran, he says.#karnatakahijab #KarnatakaHighCourt
— Live Law (@LiveLawIndia) February 10, 2022
The second verse quoted by Kamat (Surah 24, verse 33) talks about not forcing one’s ‘slave-girls’ into prostitution. In case they are forced into the same for achieving short-term gains of this world, Allah will be merciful to them – the verse says. Kamat put before the court the above two verses saying that they talk of Hijab and that it is wearing the same is demanded in the Quran. Kamat repeated his stance on February 10, by quoting verse 24.31 calling the prescription of a headscarf is ‘specifically prescribed’ in the Holy Quran.
AG Prabhuling Navadgi’s submission challenging the Plea
On the eighth day of the Karnataka Hijab case hearing, Advocate General Navadgi continued his submission arguing wearing hijab does not constitute to be an essential religious practice as shown by the petitioners – especially by SA Kamat. The basis of the AG’s arguments as presented today was to establish whether citations in the Quran count as essential practices and whether their interpretations are mandated or are ‘prescriptions’. He referred to the Mohd Hanif Qureshi case that considered the issue of whether cattle slaughter restrictions interfered with religious practice.
AG : I read this judgment (Qureshi) to show that it has said reading of Quran has shown that sacrifice of cow on that day is not obligatory. The very fact of an option seems to run counter to an obligatory duty.#HijabBan #KarnatakaHighCourt
— Live Law (@LiveLawIndia) February 22, 2022
Concluding that there exists no direct evidence as to prove that sacrifice of a cow as ‘obligatory’, he connected the dots of the case to the Hijab row. “What is optional is not compulsory; What is not compulsory is not obligatory; What is not obligatory is not essential,” he added. He then stated that there is a dichotomy in the petitioner’s argument to wear the Hijab as a free expression guaranteed by article 19(a) while also quoting article 25 which allows citizens to practice compulsory (Fundamental) religious practices. According to him, Article 19 (a) deals with freedom of ‘choice’ whereas Article 25 deals with the right to practice ‘Compulsion’.
AG: Art 25 has an element of compulsion as far as dress is concerned. The consequences of a declaration of a court in ERP is that every member of the community is bound to abide. #HijabBan #KarnatakaHighCourt
— Live Law (@LiveLawIndia) February 22, 2022
In such a case, it is evident according to the petitioner’s own argument that there seems to be confusion on whether wearing hijab is a choice or a compulsion. Furthermore, AG Navadgi pointed out that the source mentioned by the petitioner Advocate Kamat was an interpretation by the website Quran.com which is created by a few volunteers and is not authorised.
AG : Petitioners have referred to https://t.co/QFtOh2okR6. It is a website created by few volunteers and it is not authorised. But transaltion is more or less the same in respect of these verses with which we are concerned
— Live Law (@LiveLawIndia) February 22, 2022
He then referred to Sura 24, verse 31 which was put before by Kamat earlier before the Court. AG Navadgi repeated it saying, “Say to the believing women that they should lower their gaze and guard their modesty, that they should draw their veils over their bosoms..and not display their beauty except to their husbands, their fathers…” Referring to the verse, Chief Justice Krishna Dixit pointed out at ‘hijab’ is not as such directly mentioned. AG repeated that he wanted to point out the same.
AG Prabhuling Navadgi then quoted another verse (33.59) which deals with women wearing veils from the holy Quran.
According to the website Quran.com, it read, “O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused. And ever is Allah Forgiving and Merciful. It is evident that the Hadith in the Quran is asking women to cover their bodies while the CJ was quick to point out that it only talks about a dress which is a long gown and not a headdress.
AG now refers to Sura 33, Verse 59
— Live Law (@LiveLawIndia) February 22, 2022
Chief Justice : It talks about a dress which is a long gown. Not headdress
AG: They have relied upon. This is an area I would be more circumspect in making submission. Because it is very Holy.#HijabBan #KarnatakaHighCourt
The Advocate General has argued before the court that the source on which the petitioners have relied also does not mention hijab. He further added that if all submissions by the petitioners calling hijab an essential religious practice are concerned, a judicial declaration based on a religious sanction is being sought. “(Here) The element of choice goes away. A woman concerned becomes obligated by religious sanction to wear that particular dress,” he added.
CJ : You want to say suppose the court hold that wearing of hijab is essential religious practice, the women who do not wear will be lowering their dignity?
— Live Law (@LiveLawIndia) February 22, 2022
AG: Certrainily milords and it is in the context of dress.#HijabBan #KarnatakaHighCourt
While concluding his observations, AG Navadgi said, “For a large number of petitioners who represent women organisations, I am making a statement, dignity of the women must be kept in mind.”The Karnataka High Court intends to close the hearing by the end of this week. For wearing of hijab to whether to be termed as an essential religious practice, both sides of the spectrum argued in the court in length.
