[Note: This is the second and the final post of the series. Continuing from the first post, it discusses the error made by the court in disregarding the Hadith and important judgments, creation of an erroneous standard of proof, and the disregard of other constitutional rights.]
3) Disregard of Hadith and Important Judgments
The Hadith is a source of Muslim law, along with the Quran, Ijma, and Qiyas. In paragraph 7 of Shayara Bano vs. Union of India, the Supreme Court noted:
“There are four sources for Islamic law – (i) Quran (ii) Hadith (iii) Ijma (iv) Qiyas. 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 Quran.”
In this case, the petitioners had relied upon verses 4758 & 4759 (Chapter 12) from Dr. Muhammad Muhsin Khan’s ‘The Translation of the Meanings of Sahih Al-Bukhari, Arabic-English.’
The verses which have been relied upon provide essential backing to the arguments of the petitioners that hijab is an essential religious practice in Islam. This was very important for the court to consider. However, the court has disregarded the verses on the ground that the petitioners did not place enough material to show the credentials of the translator, Dr. Muhammad Muhsin Khan.
This is not sufficient ground to disregard the important verses themselves and the court should have looked into other translations whose authenticity it had reasons to believe in. In support of this argument, I would like to point out that the research paper by Sara Slininger which the court had used to say that wearing hijab is only a cultural practice, was not mentioned by either the respondents or the petitioners.
Furthermore, the court has also disregarded important judgements. The petitioners had placed heavy reliance on the Madras High Court judgment of M Ajmal Khan vs. Election Commission of India. In paragraph 15 of this judgement, the court has noted:
“It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.”
This judgment has not been considered at all in this case.
Similarly, reliance was also made on In re Amnah Bint Basheer by the High Court of Kerala. This judgement noted:
“Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram).”
This judgment provides important backing to the argument of the petitioners and explains the mandatory nature of the practice as well.
However, this judgement was not considered by the court and the court provided three reasons for this:
1) that during the Kerala High Court judgment, the restriction was only a one-time affair for the All India Pre-Medical Entrance Exam;
2) that the measure of ensuring personal examination of the candidates in the presence of a lady member was also feasible;
3) that the judge in the judgment noted that provision could be interpreted differently through ‘ijithihad’ (independent reasoning).
These reasons are incorrect. Firstly, if suppression of religious practice was not allowed for a day, it should not be disallowed for an extended period as well. Secondly, it is not for the court to decide on the policy which the government should have followed for conducting the exam, and its suggestion of having separate classrooms for female Muslims to give exams is very problematic. Thirdly, the comments by the Kerala High Court justice were pro-choice. The judge did not mean that because a person may not want to wear a hijab, it is not a farz in Islam to wear it. This is clear from the lines of the same paragraph:
“The possibility of having different propositions is not a ground to deny the freedom, if such propositions have some foundation in the claim. As has been adverted above, the claim of the petitioners is well founded even though, a different view is possible. This Court is only expected to safeguard such freedom based on the Constitution in preference to giving a religious verdict.”
4) Creation of Erroneous Requirements of Proof
In the judgement, the court has introduced two incorrect requirements of proof for the essential religious practice test.
On page 86 of the judgement, the court states:
“We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners’ side.”
Firstly, an affidavit sworn by a Maulana is not a source of Muslim law. Secondly, assuming that it is required for interpreting Muslim law, the court should not have drawn the interpretations it has in the absence of such an affidavit.
The court has also noted:
“Since how long all the petitioners have been wearing hijab is not specifically pleaded. The plea with regard to wearing of hijab before they joined this institution is militantly absent.”
All of these are not important for determining whether hijab is an essential religious practice or not. Neither should the court look into how compliant the women have been with the religion in their personal lives, where they are entitled to various religious freedoms under the Indian Constitution.
5) Disregard of other Constitutional Rights
The petitioners had also argued that the order violated (i) the right to freedom of expression and privacy, (ii) that a reasonable accommodation could be provided, (iii) that it amounts to indirect discrimination on the grounds of religion and gender, and (iv) that it violates the freedom of conscience.
The court has disregarded the first argument on the ground that the right to freedom of expression and privacy are ‘derivative rights’ and that they do not enjoy the same protection as substantive rights. While the reasons for refusing reasonable accommodation are difficult to decipher, the court has not at all looked at this case from the angle of indirect discrimination. The court has also refused the ground of freedom of conscience.
All the arguments on these four points have been discussed in detail by Advocate Gautam Bhatia in his recent article titled ‘Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment’.
He especially points out that in US jurisprudence, such as in the case of United States vs. O’Brien, visible manifestation of the expression of speech can be regulated by the State because it is based on the American First Amendment. But, in proportionality-focused jurisdictions like India’s, the test remains the same regardless of whether the speech is verbal or when there is a visible manifestation of it. In India, this flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1) (a) of the Constitution.
Conclusion
The petitioners had vehemently argued that the primary question before the court was about the validity of the Government Order and then about the essential religious practice test. But the court still framed questions around the essential religious practice test itself and it should not have been done.
The judgment starts with moving quotes about the plurality of India:
“Chief Justice S.R. Das in In Re: Kerala Education Bill made the following observation lauding the greatness of our heritage:
‘…Throughout the ages endless inundations of men of diverse creeds, cultures and races – Aryans and non- Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals – have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India’s tradition has thus been epitomised in the following noble lines:
‘None shall be turned away From the shore of this vast sea of humanity that is India’
(Poems by Rabindranath Tagore)…’”
“In S.R.Bommai, the Hon’ble Supreme Court of India observed:
‘India can rightly be described as the world’s most heterogeneous society. It is a country with a rich heritage. Several races have converged in this subcontinent. They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the early leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance…’”
But despite this understanding of plurality, the judgment is riddled with several errors and unjustifiably makes a case for uniformity in what students should wear during their education. The judgement is hence liable to be overturned on appeal because (i) it misinterprets the injunctions of the Quran, (ii) disregards important constitutional rights, and (iii) fails to consider the implications of international law.
It is important that the diversity of India’s pluralistic society is also reflected in its classrooms and that we empower women to express their agency to wear or not to wear any attire as a matter of choice, without hindering their access to education.
Lex Flaneur 