In the High Court of Karnataka, a debate is taking place over whether wearing the hijab can be considered an “essential religious practice” of the Islamic faith. Arguments on both sides cited different sources and interpretations of the Quran. Lead Attorney Devdatt Kamat, who was appearing on behalf of the petitioners, cited the translation of the Holy Quran available on the website. Koran.com.
On February 22, Advocate General Prabhuling Navadgi argued that the interpretation cited by the petitioners came from a website created by a few volunteers and was not the authorized version. The court took the reference of previous cases including Shah Bano case, Ismail Faruqui case (which dealt with acquisition of Babri structure) and others to check which interpretation of Quran was allowed by Indian courts in previous cases.
The Arguments of H.H. Devadatt Kamat
On the first day of the hearing of the case, February 8, lead barrister Devdatt Kamat appeared in court referring to the judgment of the Kerala High Court on the allocation of hijabs in schools. Quoting paragraph 13 of the judgment, “Kamat read: ‘Religious practice cannot be tested on secular thoughts or any other consideration external to religious authority’. Arguing what constitutes essential practice, he said that ‘She should be determined on religious beliefs. alone and not based on secular notions. Kamat then referred to the verses in the Quran that talk about wearing a veil as described by the interpretation given on the site. Koran.com.
Kamath: the source comes from https://t.co/QFtOh2FnT6 and it is said to be the authentic Quran.
– Live Law (@LiveLawIndia) February 8, 2022
In sura 24 verse 31, it was mentioned that women should be allowed to pull their veils over their chests and not reveal their “hidden ornaments” to “keep their chastity”.
An interpretation of the verse by Dr. Mustafa Khatab says, “And tell believing women to lower their gaze and keep their chastity, and not to reveal their ornaments except what normally appears. Let them pull back their veils on their breasts and reveal their “hidden” finery only to their husbands, their fathers, their fathers-in-law, their sons, their sons-in-law, their brothers, sons of their brothers or sons of their sisters, their fellows, those ˹slaves˺ in their possession, the male servants without desire, or the children who are still unaware of the nudity of women. Let them not stomp their feet drawing attention to their hidden adornments. Convert all together in repentance towards Allah, O believers, that you may succeed. »
Kamat refers to verse 24.31 of the Holy Quran. The prescription of the headscarf is specifically prescribed for him in the Holy Quran, he said.#karnatakahijab #KarnatakaHighCourt
– Live Law (@LiveLawIndia) February 10, 2022
The second verse quoted by Kamat (Sura 24, verse 33) speaks of not forcing one’s “slaves” into prostitution. In case they are forced to do the same for short-term gains in this world, Allah will have mercy on them – says the verse. Kamat presented the above two verses to the court saying they are talking about hijab and wearing the same is required in the Quran. Kamat reiterated his position on February 10, citing verse 24.31 calling the prescription of a headscarf “specifically prescribed” in the Holy Quran.
Submission by AG Prabhuling Navadgi challenging the plea
On the eighth day of hearing in the Karnataka Hijab case, Advocate General Navadgi continued his argument by arguing that wearing the hijab is not an essential religious practice, as shown by the applicants – in particular by SA Kamat. The basis of the AG’s arguments as presented today was to establish whether quotations in the Quran count as essential practices and whether their interpretations are binding or are “prescriptions”. He referred to the Mohd Hanif Qureshi case which involved the issue of whether restrictions on the slaughter of cattle interfered with religious practice.
AG: I read this judgment (Qureshi) to show that he said that the reading of the Koran showed that the sacrifice of a cow on this day is not obligatory. The very fact of an option seems to go against a mandatory duty.#HijabBan #KarnatakaHighCourt
– Live Law (@LiveLawIndia) February 22, 2022
Concluding that there is no direct evidence to prove that the sacrifice of a cow is “compulsory”, he connected the dots of the case to the Hijab row. “What is optional is not obligatory; What is not obligatory is not obligatory; What is not mandatory is not essential,” he added. He then stated that there is a dichotomy in the petitioner’s argument for wearing the hijab as a free expression guaranteed by section 19(a) while also citing section 25 which allows citizens to practice practices religious (fundamental) obligatory. According to him, Article 19 (a) deals with freedom of “choice” while Article 25 deals with the right to practice “coercion”.
AG: Art 25 includes an element of constraint with regard to dress. The consequences of a court declaration in ERP is that every member of the community is bound to respect. #HijabBan #KarnatakaHighCourt
– Live Law (@LiveLawIndia) February 22, 2022
In such a case, it is evident from the applicant’s own submissions that there appears to be confusion as to whether wearing the hijab is a choice or a compulsion. Furthermore, AG Navadgi pointed out that the source mentioned by the applicant lawyer Kamat was an interpretation of the website Koran.com which is created by a few volunteers and is not allowed.
AG: The petitioners have referred https://t.co/QFtOh2okR6. This is a site created by a few volunteers and it is not authorized. But the translation is more or less the same with regard to these verses which interest us.
– Live Law (@LiveLawIndia) February 22, 2022
He then referred to sura 24, verse 31 which was presented by Kamat earlier in court. AG Navadgi repeated it saying, “Tell believing women that they should lower their gaze and keep their modesty, that they should pull their veils over their breasts… and show their beauty only to their husbands, their fathers…” Referring to the verse, Chief Justice Krishna Dixit pointed out that “hijab” as such is not directly mentioned. AG reiterated 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 Quran.com website, it was written: “O Prophet, tell your wives and your daughters and the wives of the believers to bring down upon themselves [part] of their outer clothing. It is more appropriate that they are known and not abused. And Allah is always Forgiving and Merciful. It is obvious that the Hadith of the Quran asks women to cover their bodies as the CJ was quick to point out that it is only talking about a dress which is a long dress and not a headdress.
AG now refers to sura 33, verse 59
Chief Justice: He’s talking about a dress that’s a long dress. No hairstyle
AG: They relied on. This is an area in which I would be more circumspect in my submission. Because it is very holy.#HijabBan #KarnatakaHighCourt
– Live Law (@LiveLawIndia) February 22, 2022
The Advocate General argued in court that the source on which the applicants relied also did not mention the hijab. He further added that if all petitioners’ submissions qualifying hijab as an essential religious practice are concerned, a judicial declaration based on religious sanction is sought. “(Here) The element of choice is leaving. A concerned woman becomes compelled by religious sanction to wear that particular dress,” he added.
CJ: You mean, suppose the court rules that wearing the hijab is an essential religious practice, women who don’t wear it will undermine their dignity?
AG: Definitely milords and it’s in the dress code.#HijabBan #KarnatakaHighCourt
– Live Law (@LiveLawIndia) February 22, 2022
While concluding his remarks, AG Navadgi said, “For a large number of petitioners who represent women’s organizations, I make a statement, the dignity of women must be kept in mind.” The Karnataka High Court intends to close the hearing by the end. from this week. For the wearing of the hijab to qualify as an essential religious practice, the two sides of the spectrum argued at length in court.
