Image Courtesy:livelaw.in
An Islamic organisation named Samastha Kerala Jem-iyyathul Ulama (SKJU) has challenged in Supreme Court, the Karnataka High Court’s Judgment which upheld the state government’s Order that put a ban on wearing of Hijab by Muslim girls in classrooms.
The High Court held that wearing of Hijab was not an essential religious practice in Islam. On March 24, a request was made by Senior Adv. Devadatt Kamat in the Court of CJI to take up the Petition challenging the Karnataka High Court’s judgment, for urgent hearing. But this was declined.
Content of the Petition
A Special Leave Petition (SLP) filed through Advocate Zulfikar Ali in the Supreme Court by clerics of the SKJU claims that the High Court relied upon an erroneous interpretation of the Holy Quran, the Hadis and that of the Islamic law.
The Petition mentions the Surah 24 Ayat 31, and Surah 33 Ayat 59, which say that in the Holy Quran it is obligatory for the women to cover their head and neck. The Petition also states that it is the express dictum of Quranic verses and is also included in the teachings of Prophet Mohammed (PBUH) that a woman should cover her head and neck in the presence of males from outside her immediate family. Muslim women use different types of veils across the world to cover their head and neck This garment is distinct from other garments to cover their body. Hijab is one of those veils evolved in modern period which also got a widespread acceptance by virtue of its comfort and modesty.
The Petition further states that the legal theory stated in the Karnataka High Court Judgment, which was binding only to the Karnataka State, will have a large impact throughout the Country. The Petition claims that this Special Leave Petition was filed in the Supreme Court in the larger interest of the Muslim community.
The Petition states that the High Court erred in declaring Hijab to be non-mandatory practice, on a very erroneous reasoning that no penalty is prescribed for not following it. The Petition further states, “As per the law settled by the Supreme Court in catena of Judgments, for a religious practice to pass the ‘essentiality test’ it is not necessary that there must be a penalty or penance attached with it… The High Court is not justified in insisting for a punishment attached with it to get protection of Article 25 for this dress code,” as reported by LiveLaw.
The Petition further contends that according to commandments of Qur’anic verses and Hadis mentioned above, it is the ‘farz’ (duty) of women to cover their head and neck and they are forbidden from exposing their female body otherwise. The violation of farz is haram (forbidden) as per Islamic jurisprudence. Therefore, not allowing a Muslim woman or girl to wear the headscarf is in violation of her right to follow the essential religious practice of her religion as protected under Article 25 of the Constitution. The Petition also contends that the High Court completely relied upon the commentaries given by Abdulla Yusuf Ali in the footnotes of suras to declare hijab as a non-essential practice. These footnotes of Yusuf Ali are his personal opinions which cannot be considered as a source of Islamic law.
The Petition further claims that same coloured headscarf to that of the uniform would not offend the public order of any educational institutions. Enforcing the strict uniform dress code for the students not only fails the test of reasonable restrictions laid by the Supreme Court but also outrages the idea of unity in diversity. Compelling such an absolute uniformity for citizens is seen as the replica of the Nazi ideology.
On March 24, a request was made in the Court of CJI Ramana for urgent listing of the Petitions challenging the said Karnataka Judgment in hijab case. It was urged by Senior Advocate Devadutt Kamat on behalf of Muslim students to take up the matter as their exams were about to start from March 28. CJI Ramana while refusing the request, reportedly said, “Exams have nothing to do with the issue, don’t sensitise the issue.”
The Supreme Court had earlier on March 16, said that the matter will be listed after Holi Vacations, when the Petitioners sought urgent hearing on the grounds of upcoming exams.
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