By Mohammed Tahir Hakim*
The issue concerning the obligatory nature of the Hijab in Islam has led to an extensive debate on the relevance of Islamic scriptures and the practice of Islam. The same has been extensively debated before the Karnataka High Court, in the media, and now, before the Supreme Court.
Before the Courts, the petitioners have made vehement constitutional arguments of privacy, free expression, religious freedom, and protection against discrimination to protect their right to wear a Hijab. However, these arguments have not convinced the State and the Karnataka High Court, which is how the matter is now being heard in the Supreme Court. The arguments of the State and those opposing Hijab seek to divert the debate from liberal constitutional principles and insist on an ecclesiastical expedition on the religious relevance of the Hijab. Accordingly, the Essential Religious Practices (‘ERP’) test as evolved over the years by the Supreme Court, is foisted as the bone of contention whereby it is sought to be canvassed that the wearing of the Hijab is not an essential religious practice of Islam. The ERP test itself is of doubtful origin. According to the Supreme Court itself, there is a clear difference of opinion between a judgment of seven judges of the Supreme Court in the Shirur Mutt case, which holds that it is not for the courts to decide the essentiality of religious practice to a particular religion and, a judgment of five judges of the Supreme Court in Ajmer Dargah case, which holds the exact opposite; meaning thereby, that the Courts can examine religious scriptures to determine if a particular practice is essential to a religion or not. This apparent conflict is now referred for resolution to nine judges of the Supreme Court which is currently pending. However, following judicial discipline, the judgment of 7 judges is the law of the land; therefore, the ERP test has no application.
Even otherwise, assuming that the ERP test is to be applied, it is pertinent to point out that the question of whether the wearing of the Hijab fulfils the ERP test or not is already examined and decided by various courts in the country and abroad. Judgments of the Kerala High Court, Division Bench of Madras High Court, and foreign courts viz., Supreme Court of Kenya and Osun High Court, Nigeria, after detailed examination of the religious scriptures and sources of Islamic law, have held that the wearing of Hijab in Islam is obligatory. The conclusion is arrived at by accepting the very same Surah (Chapter) Nur, Aayat (Verse) 31, and Surah Ahzab, Aayat 59, of the Quran and the Ahadith (plural of hadith) – the sayings and precepts of Prophet Muhammad (PBUH)), Sahih Bukhari Hadith Nos.4758 and 4759, which are currently cited before the Supreme Court. However, even then, the State, the Karnataka High Court, and now, seemingly, the Supreme Court insist on examination of the practice of wearing a Hijab on the touchstone of the ERP test. In this context, it is a pertinent state that for holding Triple Talaq/Talaq Biddat as invalid, its prescription world over was cited as a precedent and the justification of the same being a sin in Islamic theology was heavily relied upon and also accepted by the Supreme Court. Whereas now, the global consensus of theological opinion of the Hijab being obligatory and non-adherence to the Hijab being a sin is not accepted.
In this context, it is important to understand the structure of Islamic law. The judicially accepted sources of Islamic law (Shariah) are the Quran (the revealed word of Allah), the Hadith (the sayings and precepts of Prophet Muhammad (PBUH)), Ijma (the consensus of Muslim Scholars), and Qiyas (analogical deductions). However, while deciding the issue of the Hijab, the Karnataka High Court relies only upon an English translation of the Quran and its commentary by only one particular author, Abdullah Yusuf Ali. The High Court completely discards the Ahadith, erroneously referring to the same as “verses” and doubting the authenticity of its translations, though the Hadith is the judicially accepted second source of Islamic law. The same demonstrates a lack of understanding of the sources of Islamic law and non-appreciation of the accepted sources of Islamic law which has evidently resulted in a wrong conclusion.
In addition to the same, the almost statutory reliance upon the commentary of Abdullah Yusuf Ali is also seriously erroneous. Since the commentary is the opinion of the author and shall verily be his views and may not be correct, as is the case herein, which is contrary to classical commentators, whom the community follows. This is the strongest criticism of the ERP test. In its application, judges who are trained in common law and interpretation of statutes, are not tasked with the ecclesiastical exercise of interpreting religious scriptures of a different language. Be that as it may, even as per judicially recognized sources of Islamic law, the Karnataka High Court ought to have read the translation of the Quran by Abdullah Yusuf Ali and read it in conjunction with the other sources of Islamic law such as clear Ahadith and the Ijma of more than 1400 years, which mandate the obligatory nature of Hijab and non-observance of the same being a sin.
Therefore, after two High Courts in our country and two International Courts have unambiguously held that the wearing of a Hijab is obligatory after an examination of the very same religious sources, there is little for the Supreme Court to deliberate on so far as the essentiality and importance of Hijab in Islam are concerned. Since on the examination of the same religious text, two different conclusions cannot be drawn. However, as the High Court has done so, it is required to be quashed. Even otherwise, from a mere reading of the verses of the Quran and Ahadith on the subject, there can be no controversy or doubt with respect to the obligatoriness of the Hijab in Islam, irrespective of the fact that Muslims may adhere to it or not. It is hoped that the same is accepted by the State and the Supreme Court and Islam and Muslim practices are not subjected to pejorative scrutiny and ridicule. It is also hoped that the Courts view religious practices from the perspective of the believer and not impose their understanding on them. Such an approach would be the end of religious freedom as a constitutional protection.
(The author is an advocate practicing at the High Court of Gujarat).
Hijab is must for muslim