- Soy Matinee
- BBC News, Delhi
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Hijab has become a hot topic in Karnataka schools in recent months.
The hijab is “culturally relevant, but certainly not religious,” according to a landmark ruling by an Indian court on Tuesday.
The three-judge panel of the Karnataka High Court upheld the government’s ban on wearing the hijab in schools and colleges on the grounds that it is not “essential” for Islam to wear it.
An appeal has been filed in the Supreme Court against the ruling, which comes in the wake of allegations of unification in the controversy over the hijab.
The appeal was filed hours after the High Court order was issued.
But legal experts and scholars are beginning to examine the verdict. They are beginning to wonder what this means in a country where different cultures are followed.
At the heart of the verdict is the test of “whether it is essential.” That is, it determines whether it is essential for a religion. Indian courts use it extensively to resolve religious disputes.
Is wearing hijab essential for Islam?
This question was the main point of the trial and formed the basis of the 129-page judgment.
The petitioners are a group of Muslim women who were banned from wearing hijab in class at a government college in Udupi district of Karnataka. The college did not allow them to wear the hijab. The matter went to court.
They argued that banning the hijab not only discriminated but also affected their right to freedom of expression and religion. The women said their religion told them to wear the hijab.
The prosecution argued that the petitioners had to prove that the hijab was an “essential” religious practice.
After 11 days of heated arguments and adjournments, the court ruled that the petitioners had “utterly failed” to prove this.
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The hijab issue has sparked many protests
Citing passages from the Qur’an, the court ruled that “those who do not wear the hijab will become sinners if they do not wear it. Islam will not lose its glory and become a religion.”
Therefore, the court held that the state has the right to recommend uniforms without hijab. The court rejected the students’ objections, saying the rule was a “reasonable restriction” on their constitutional rights.
The court ruled that “what is not religiously obligatory cannot be made a major feature of religion through public protests or through emotional arguments in the courts.”
But constitutional experts and legal scholars say this is not a matter for the court to decide. “It’s like lawyers and judges entering a theology that they don’t know much about,” said Rebecca John, a senior Supreme Court lawyer.
The ‘essential test’ – then and now
“When it comes to religious beliefs, practices are not the only method. You can come under the umbrella of a particular religion, but each has a unique choice,” says John.
“Even the hijab is a symbol of many things for different people. The easiest way to ban it is to say that it is a sign of oppression.
In doing so, the court has excluded women from their choice. It eliminates complex and mind-boggling choices, making it one of only two options.
The Constitution of India allows states to restrict the right to religious freedom on the basis of public order, health and morality. But the essential religious practice test is used to determine which practices are protected by the right to religious freedom. It has only just developed in court.
The Supreme Court first used the term “essential part of a religion” in 1954. He also said that if the removal of a practice causes a “fundamental change in religion”, it is essential.
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The ruling will affect millions of Muslim girls who come to school wearing the hijab
“It empowered the religious communities. Matters beyond the power of the state to regulate or change are determined by the religious communities,” says Deepa Das Azevedo, a legal scholar and professor.
“So this doctrine has gone from‘ religious essential ’to‘ essential to religion ’,” he says.
Courts in countries such as the United States accept plaintiff’s claim that a given practice is religious without further inquiry.
But experts say the courts in India make that decision somewhat arbitrarily.
Optional depends
In 2017, the Supreme Court of India banned mutalaq (instant divorce) in Islam. It said it was not an essential part of religion and therefore had no protection. In 1994, the Supreme Court settled a disputed land dispute between Hindus and Muslims. It ruled that the mosque was not “essential” to follow Islam and that namaz or prayers could be performed anywhere and therefore the land around the mosque could be given to Hindus.
In 2018, the court again used the ‘essential test’ to allow Hindu women of all ages inside the Sabarimala temple. Historically women of a certain age were forbidden to enter the temple. The court ruled that the restriction was not an “essential religious practice.”
In 2016, the High Court in Kerala examined the Quran and ruled that covering the head should be a religious obligation and therefore essential to Islam. The court heard a petition filed by students who were not allowed to wear the hijab for a medical exam on the grounds that they might be the type to drink coffee.
Petitioners in Karnataka cited this judgment. But this time the court rejected their argument.
“The court used the test randomly.
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The verdict of the Karnataka High Court confirming the ban on hijab has been hotly debated
He argues that this test restricts the purpose of religious freedom guaranteed by the Constitution. On the other hand, experts are not sure what a good alternative theory to follow would be.
“It would have been nice if I had a simple answer to this,” Ms Acevedo says. “The truth is, there is no such thing as ideal theory. We believe that the laws we make and those who understand and apply them will be as fair and generous as possible. But that does not mean that it will always happen. This does not mean that ideal theory will solve all our problems.”
Ms. John says the emphasis should be on choice.
“Who are we to say that the choice of a woman to wear the hijab is not a well-thought-out decision?” He asks. “The court should have considered not only the essential test but also the optional argument.”
“If uniforms are to be enforced, it must be uniform. One should not be allowed to wear a patch on the forehead or tie a scripture on the wrist. It is discriminatory if only one class insists on it,” he noted.
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