Why hijab ‘isn’t an essential part of Islam’: hijab verdict of Karnataka High Court

The concept of secularism mentioned in the preamble of the Constitution considers secularism as neither anti God nor pro god, it treats alike the devout, the antagonistic and the atheist.

Worshipping God should be according to the dictates of one's own conscience. 

In Aruna Roy v. Union of India,  court quoted gandhiji who said "The real meaning of secularism is sarva dharma sambhav meaning equal treatment and respect for all religions. But we have misunderstood the meaning of secularism as sarva dharma abhav meaning negation of all religions".

On 2 December 1948, Dr Ambedkar acknowledged that religious conceptions in India “cover every aspect of life, from birth to death”. However, he added, “There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.”

Essentially religious’ and the Shirur Mutt case:

One of the first such instances of a court adopting these words of Ambedkar was by a seven-judge bench of the Supreme Court in the Shirur Mutt case in 1954. In this case, the court  define the constitutional scope of religious freedom in a dispute over the extent to which the Madras Hindu Religious and Charitable Endowments Act, 1951, could control the management of the Shirur Mutt, a monastery in Udupi.

The Court made a distinction between ‘religious’ and ‘secular’ practices where ‘religious’ practices were considered to be the ones of utmost importance to the religion and ‘secular’ activities defined as practices which were associated with the religion but do not really constitute an essential part of it for example economic, financial and political activities.  

hence, only ‘religious practices’ were considered to be essential and integral and could avail constitutional protection.

The court observed that “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious,” 

From Shirur Mutt to Sabarimala:

1.   However, ‘essentially religious’ slowly turned into the ‘essential religious practice test’ with the Allahabad High Court ruling in 1957 that bigamy cannot be considered an integral part of the Hindu religion, and another Supreme Court judgment in 1958 holding that the sacrifice of a cow on the occasion of Id was not an essential religious practice for Muslims.

2.  In 2004, the Supreme Court applied the test of essential religious practices in deciding whether the Tandava dance was an essential rite of the Ananda Marga Faith. It ruled that the faith had come into existence in 1955, while the Tandava dance was adopted only in 1966. The court, therefore, ruled that since the faith had existed before the adoption of the dance, the latter cannot be considered an essential feature of the faith. 

3.  In 2016, the Bombay High Court permitted women to enter the sanctum sanctorum of the Haji Ali Dargah, ruling that the Haji Ali Dargah Trust’s decision to exclude them was illegal and unconstitutional. In its judgment, the court ruled that the Trust had failed to place any material on record to demonstrate that the exclusion of women from dargahs was an “essential feature” of Islam. 

4.  More recently, in 2017, the Supreme Court ruled that triple talaq was not an essential practice of Islam and could not be offered constitutional protection under Article 25. 

5.    A year later in 2018, the Supreme Court in the Sabarimala case rejected the claim of ‘Ayyappans’ (pilgrims) that the exclusion of women between the age of 10 and 50 from entering the temple constituted an essential practice. A review petition against this decision is, however, pending in the Supreme Court. 

The Hijab case:

The whole issue was the aftermath of a Government Order dated 5th February, 2022 issued under the Karnataka Education Act 1983 by the State of Karnataka.

This order purportedly issued under section 133 read with sections 7(2) & (5) of the Karnataka Education Act, 1983 provides that, the students should compulsorily adhere to the dress code/uniform as follows:

a. in government schools, as prescribed by the government;

b. in private schools, as prescribed by the school management;

c. in Pre–University colleges that come within the jurisdiction of the Department of the Pre– University Education, as prescribed by the College Development Committee or College Supervision Committee; and

d. wherever no dress code is prescribed, such attire that would accord with ‘equality & integrity’ and would not disrupt the ‘public order’.

The major issue was whether wearing hijab is a part of the "essential religious practice" in Islamic faith under Article 25 of the Constitution.?

The Court prefers to bank upon the ‘The Holy Quran: Text, Translation and Commentary’ by Abdullah Yusuf Ali, (published by Goodword Books; 2019 reprint), there being a broad unanimity at the Bar as to its authenticity & reliability.

Also, the Apex court itself in a catena of cases has treated the same as the authoritative work.

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.

Further court observed that,  in order to establish the essential religious practice the claimants have to plead these facts and produce requisite material to prove the same. But instead the state representatives are more justified in contending the petitions lack Essential  averments and not loaded evidentiary material to prove the case.

It then asserted that “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”.

The court therefore concluded that “wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith”.

Future of the test uncertain:

The test has, however, faced criticism on several occasions. Critics have often pointed out that it forces judges into becoming “ecclesiastical authorities (often for religions that are not even their own)”. Justice D.Y. Chandrachud in the Sabarimala case had lamented that “compulsions nonetheless have led the court to don a theological mantle”. 

The future of the test is also uncertain at the moment. This is after the Supreme Court,  while considering review petitions in the Sabarimala case, referred seven questions to a larger bench. A nine-judge bench is set to re-evaluate the “essential religious practice test”, among other issues related to Constitutional morality, and the interplay between freedom of religion under the Constitution and other fundamental rights.