The Karnataka and Kerala HC rulings on hijab are at variance; now the SC needs to clarify
The Supreme Court of India has to intervene in the Karnataka hijab case for the simple reason that we now have two judgments, of the Karnataka High Court on Tuesday and the Kerala High Court of 2016, that differ on whether the hijab is an essential Islamic practice. The Karnataka judgment says it is not. It banks, apart from various Islamic sources, on the work of jurist Abdullah Yusuf Ali who states 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 Kerala High Court banks on the “analysis of the Quranic injunctions and the Hadiths” to conclude that “it is a farz to cover the head and wear the long-sleeved dress except (the) face part and exposing the body otherwise is forbidden (haram)…. When farz is violated by an action opposite to farz, that action becomes forbidden (haram)”. The girls of the educational institution in Udipi, who are not able to attend their classes because they refuse to remove their hijabs in classes and fear that they may miss out on their examinations due shortly, will not be wrong if they cannot decide which judgment to follow. The Karnataka High Court agrees that while the Quran does not mandate the wearing of hijab for Muslim women, “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”.
Recommendatory does not amount to being mandatory surely, but it also does not prohibit the use of the hijab. It only means it leaves it to the discretion of the user. Also, the court says “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’s enablement and a figurative constraint”. Then where is the problem? The point being made here is how we end up splitting hairs and cross the realm of reasonableness if the essential practices doctrine is rigidly followed where matters of religion happen to conjoin matters of personal choice and freedom. The Karnataka High Court also says the hijab cannot be part of the uniform code because a uniform instils a sense of discipline. Interestingly, on Tuesday, the same day as the judgment, news reports say Sikhs can carry a small ‘kirpan’ with them to high-security installations like airports. Sikh students wear headgear and unshorn hair in schools, the colour of the headgear often matching their uniforms. Religious symbols are allowed to be worn in several uniformed services where discipline is mandatory. The hijab case, therefore, needs a clarification from the Supreme Court so that the essential practices doctrine is not misconstrued to be regulating diversity in the name of discipline and uniformity and deny individual choices and freedoms in cases which do not pose any danger to society to invite restrictions.