Syed Khalique Ahmed
NEW DELHI—All India Muslim Personal Law Board (AIMLB) has said that “the courts have no institutional capacity to interpret religious scriptures.” AIMPLB is an apex body of Indian Muslims assisting to protect the personal laws of Muslims.
The board has made the statement in a petition filed in the Supreme Court to challenge the verdict of the Karnataka High Court that has upheld the state government’s ban on the wearing of Hijab in schools. The high court had passed the judgment on March 15.
The board filed its petition through its members-Munisa Bushra Abedi, a former professor of physics in a Mumbai college, and a Hyderabad-based advocate Jaleesa Sultana Yaseen. Both the petitioners wear Hijab in public places.
The petitioners said that the high court judgment would empower state governments and institutions under them to interfere with religious freedom guaranteed under the Constitution.
“The verdict will impact the socio-religious ethos of the Muslim community,” the petition argues.
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According to the petition, the verdict indicates an “erroneous understanding” of the Holy Quran on the part of the judges who decided the Hijab case. The Quran is the primary source of Islamic law.
While contending that the judgment has “erroneously transgressed into the arena of interpreting Hadith of the Prophet Muhammad (Peace Be Upon Him),” the petitioners pointed out that there was a “complete lack of understanding of the rules of interpretation of the Quran and the relevance of Hadith in interpreting the Quran” on the part of judges.
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The petitioners contended that the high court had “erroneously arrogated the power to interpret the Quran” and applied their own interpretations to reach a “wrong conclusion”. However, the judges declared Hijab a “non-essential” practice in Islam to uphold the Karnataka government order banning Hijab.
However, the petitioners pointed out that there is a consensus among all schools of Islamic thought, namely, Hanafi, Maliki, Shafai, and Hambali, that practice of the Hijab is “wajib” (mandatory). Therefore, according to consensus by these schools of thought, if women do not follow Hijab, they will commit a “sin” or become “sinners” in the eyes of Islamic law.
According to the petitioners, This consensus is based on the interpretation of the Quranic verses about the Hijab.
Emphasizing that the order “erases the basic religious freedom and freedom of expression and perpetuates discrimination, communal discord and intervenes in the protected area of privacy”, the petitioners claimed that the ban on Hijab went against the “very basic structure of secularism.”
According to the petition, the order would deprive Muslim girls of their right to education.
Stating that the ban order issued by the Karnataka government on February 5, 2022, was “partisan and communal in colour” and in response to the demand by hecklers from religious groups, the petitioners pointed out that the court upheld the government order that resulted in discrimination against Muslims in general and Muslim girls in particular.
Stating that while emphasizing uniformity in clothing, the petitioners contended that the court had ignored the ‘doctrine of proportionality that resulted in indirect discrimination against Muslim girls.
The petitioners pointed out that the Hijab demand could have been reasonably accommodated as a part of religious practice under the constitutional norms, as with the turban used by Sikhs. The petitioners said that the high court order is against the doctrine of reasonable accommodation.
The two petitioners said the judgment also ignored the objective of diversity as contemplated in the Constitution.
While the apex court had yet to decide on essentiality in religion in the Sabarimala Review case of 2019, the Karnataka high court ruled that Hijab is not an essential and integral practice in Islam. The petitioners submitted that the high court’s order did not consider the legal impact it would have.
The petition claimed that Muslim women had the right to wear and practice the Hijab based on their religious beliefs. But, at the same time, they were also entitled to assert the same rights under provisions of Article 25 (freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens) of the Constitution.
The petitioners further asserted that without diluting their rights under Article 25, they were equally entitled to claim their rights through other articles like Article 14 (Right to Equality), Article 19 (Right to Freedom), and Article 21 (Right to Life and Liberty).
So, the petitioners have pleaded that their right to wear Hijab are protected under their religious beliefs, separately and collectively under Article 25 and Articles 14, 19 and 21 of the Constitution.
