The hijab controversy is going on in the country for the last few days. So today the Karnataka High Court has delivered a final verdict of this controversy is called Hijab Final Judgment – Resham v. State Of Karnataka. Let us see Which things the court held, considered, and think at the time of delivery of the judgment of the Hijab Final Judgment- Resham v. the State Of Karnataka. The hijab controversy that in PU college in Karnataka, girls were barred from wearing hijab to Muslim girls.
PU college was made a dress code for all the students and asked them to wear the same dress and girls were banned from wearing Hijab. but Reaham and some other girls said that forbidding her to wear hijab in college meant her religious rights were being violated. (To understand it deeply please refer:-Hijab Is Not Essential Religious In Islam- Karnataka HC)
After that Resham and some other girls filed the petition in High Court against Hijab Ban in college. Having heard the learned counsel appearing for the parties Honorable High Court framed the following questions for consideration. (Hijab Final Judgment -Resham v. State Of Karnataka)
1. Whether wearing a hijab/headscarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution.
2. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19 (1) (a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?
Secularism As A Basic Feature Of Our Constitution:
“The 42nd Amendment (1976) introduced the word ‘secular’ to the Preamble when our constitution already had such an animating character ab inceptio. Whatever be the variants of its meaning, secularism has been a Basic Feature of our polity vide KESAVANANDA, supra before this Amendment.
The ethos of India may not be approximated to the idea of separation between Church and State as envisaged under the American Constitution post First Amendment (1971). Our Constitution does not enact Karl Marx’s structural-functionalist view ‘Religion is the opium of masses”.
H.M.SEERVAI, an acclaimed jurist of Yester decades in his magnum opus ‘Constitutional Law of India, Fourth Edition Tripathi ar page 1259, writes:’India is a secular but not an anti-religious State, for Constitution guarantees the freedom of conscience and religion. Articles 27 and 28 emphasize the secular nature of the state…’
Article 51A (e) of our constitution imposes a Fundamental Duties on every citizen ‘To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
Essential Religious Practices- (what is essentially religious practices is defined in these two cases by Court Court, these two cases read by Supreme Court to deliver Hijab Final Judgment -Resham v. the State Of Karnataka:-
1. In Acharya Jagadishwarananda Avadhuta, supra, it has been observed in paragraph 9 as under.
“The protection guaranteed under Article 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and therefore contains a guaranteed for rituals, observances, ceremonies and modes of worship and modes of worship which are essential or integral part of religion.
2. Indian Young Lawyers Association:- 4 things are defined in this case as an essential religious practice
(i) Not every activity associated with religion is essential to such religion. Practice should be fundamental religion and it should be from time immemorial.
(ii)The Foundation of the practice must precede the religion itself for should be co-founded at the origin of the religion.
(iii) Such practice must form the cornerstone of religion itself. If that practice is not observed or followed, it would result in the change of religion itself and,
(iv) Such practice must be the binding nature of the religion itself and it must be compelling. That a practice claimed to be essential to the religion has been carried on since time immemorial or is grounded in religion has been carried on since time religious texts per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the court in their role as the guardians of the constitution.
Essential Religious Practice Should Associate With Constitutional Values:- A person who seeks refuge under the umbrella of Article 25 of the constitution has to demonstrate not only religious practice but also its engagement with the constitutional values.
Honorable court studied Sourced Of Islamic Law, Holy Quran Being Its Principal Source:-
1. the Apex Court at paragraphs 7 & 54 in Shayara Bano case quoted FYZEE’s TREATISE which read-
2. There are four sources for Islamic Law:-
The learned author has rightly said that the Holy Quran is the ‘first source of law” According to the learned author pre-eminence is to be given to the Quran. That means sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for.
Let there be no compulsion in religion …
” Before we reproduce the relevant suras and verses, we feel it Appropriate to quote what Prophet had appreciably said at sura ( ii ) verse 256 in Holy Quran: ‘ Let there be no compulsion in religion … ‘ What Mr. Abdullah Yusuf Ali in footnote 300 to this verse, appreciably reasons out, is again worth quoting: ‘ Compulsion is incompatible with religion because religion depends upon faith and will, and these would be meaningless if induced by force …
Sūra xxiv. 31, C. – 158 ” (Quran says following things for women but it is not considered as hijab.)
And say to the believing women
• That they should lower.
•Their gaze and guard.
•Their modesty; that they.
•Should not display their Beauty and ornaments * except
• What ( must ordinarily ) appear.
Thereof; that they should draw their veils over
• Their bosoms and not display
• Their beauty except.
• To their husband, their fathers,
• Their husbands’ father, their sons,
• Their husbands’ sons,
• Their brothers or their brothers’ sons,
• Or their sisters’ sons,.
Court also thought at the time of the verdict, Is hijab Islam – specific? ,
• Hijab is a veil ordinarily worn by Muslim women, is true. Its origin in the Arabic verb hajaba, has etymological similarities with the verb ” to hide “. Hijab nearly translates to partition screen or curtain. There are numerous dimensions of understanding the usage of the hijab is visual, partial, ethical, and moral.
• This word as such is not employed in Quran, cannot be disputed, although commentators may have employed it.
• The Holy Quran does not mandate wearing of hijab or headgear for Muslim Women whatever is stated in the above suras, we say, is only a directory, because of the absence of a prescription of penalty or penance for not wearing hijab, the linguistic structure of verses support this view.
• This apparel at the most is a means to gain access to public places and not a religious end in itself.
• ” Regard being had to the kind of life conditions then obtaining in the region concerned, wearing a hijab was recommended as a measure of social security for women and to facilitate their safe access to the public domain. At the most, the practice of wearing this apparel may have something to do with culture but certainly not with religion.”
• In view of the above discussion, we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in the Islamic faith.
AS TO SCHOOL DISCIPLINE & UNIFORM AND STUDY POWER TO PRESCRIBE THE SAME:
” This is because of passionate submissions of the petitioners that there is absolutely no such power to prescribe any uniform in the scheme of 1983 or the Rules promulgated thereunder. is incomplete without teachers, taught, and the dress code. Collectively they make a singularity. No reasonable mind can imagine a school without a uniform.
• It has been there since the ancient gurukul days. Several Indian scriptures mention samavastr / shubhravesh in Sanskrit, their English near equivalent being uniform.
AS TO PRESCRIPTION OF SCHOOL UNIFORM TO THE STUDY EXCLUSION OF HIJAB IF VIOLATES ARTICLES, 14, 15, 19 ( 1 ) ( a ) & 21:
The prescription of dress code for the students that too within the four walls of the classroom as distinguished from rest of the school premises does not offend constitutionally protected category of rights, when they are religion-neutral ‘ and ‘ universally applicable ‘ to all the students
• This view gains support from Justice Scalia’s decision in EMPLOYMENT DIVISION vs. SMITH.
• School uniforms promote harmony & spirit of common brotherhood transcending religious or sectional diversities. This apart, it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A ( h ) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question. They inculcate secular values amongst the students in their impressionable & formative years
• In view of the above, Court said in the judgment of Hijab Final Judgment -Resham v. the State Of Karnataka, we are of the considered opinion that the prescription of school students uniform is only a reasonable restriction constitutionally permissible which the students cannot object to. And Hijab is not an essential religious practice in islam.