The legal tussle in the Karnataka High Court on the hijab issue has attracted unprecedented public attention. Common people in India are basically more interested in knowing the cardinality of hijab in Islam than any other legal niceties involved in the matter. This is not the first time any secular authority, such as a court has been put to decide a theological issue which has a bearing on the faith of followers of a religion.
A much touted customary practice of hijab is under challenge by another secular authority, that is, the state. Empirically, it is accepted that only secular authorities have the wisdom to solve the religious deadlock owing to various schools of thought propagating different interpretations of religious practices. Therefore, the Supreme Court of India and the High Courts have laid down certain touchstones to determine the clickbait of any religion.
The constitution of India under Art. 25 permits any practice subject to certain qualifications such as public order, morality, and health, however, to acquire constitutional protection for any religious practice, it should be essential in nature, and it is a law declared by the Supreme Court of India. The analogy behind the said principle of essentiality is to sift out detrimental and inhuman customs from genuine religious praxis thus, to obtain immunity under the Indian Constitution, hijab supporters are required to pass the test of essentiality.
The four major hierarchical authorities in the Islamic tradition are: the holy Quran, Sunna (traditions based on the life of Prophet Paigambar), ijma (juristic consensus), Qiyas (analogy). At the apex is the holy Quran, Sunna is second in command and except for the holy Quran, nothing is superior to Sunna, not even the opinions of scholars thus pathological analysis of hijab tradition has to be made in the light of the holy Quran, first. Surah Al-Ahzab, Verse No.55, states: “There is no sin for them (the wives of the Prophet) in (appearing without hijab before) their fathers, or their brothers, or the sons of their brothers, or the sons of their sisters, or their own (Muslim) women, or their slave-girls. And (0 wives of the Prophet,) fear Allah. Surely, Allah is witness to everything”. There is another verse (no.59) in Surah Al-Ahzab, which reads “O prophet, tell your wives and your daughters and the women of the believers that they should draw down their shawls over them. That will make it more likely that they are recognized, hence not teased. And Allah is Most-Forgiving, Very-Merciful”.
In Verse No.55, Allah uses the word “sin” and the verse ends with the words ‘fear Allah’ per contrain Verse No.59, – Allah does not mandate but only conveys his wish, which is expected to be passed on to all believing Muslim women through the Prophet and verse ends with the words “Allah is Most-Forgiving and Very Merciful” in other words God is saying except in front of certain category of persons only wives of prophet are perforce to wear hijab otherwise it would be called sin and the wrath of God may descend on them, however, Verse No.59 is applicable to all pious women but in this verse God only conveys his advise by saying that women should ‘draw down shawls over them’ to get identified and avoid tease. Some Islamic scholars interpret it as covering the head also, but even if their opinion is accepted, by no stretch of imagination can hijab be held essential for all women, as Verse 59, ends with the words ‘mercy and forgiving God’ which means if women flout the advisory of God they will not be punished.
The other frequently quoted verse from the holy Quran is in Surah An-Nur 24.31, which is: ‘And say to the believing women that they must lower their gazes and guard their private parts, and must not expose their adornment, except that which appears thereof, and must wrap their bosoms with their shawls, and must not expose their adornment except to their husbands or their fathers or the fathers of their husbands, or to their sons or the sons of their husbands, or to their brothers or the sons of their brothers or the sons of their sisters, or to their women, or to those owned by their right hands, or male attendants having no (sexual) urge, or to the children who are not yet conscious of the shames of women. And let them not stamp their feet in a way that the adornment they conceal is known. And repent to Allah O believers, all of you, so that you may achieve success’.
This verse mandates to cover private parts and again instructs to cover bosoms with shawls, however, nowhere does it talk about hijab or headscarf to cover the head or face, but hijab supporters intentionally ignore the edicts of the holy Quran and keep quoting opinions of Islamic scholars, their analogy and hermeneutics, thereby distorting the true precepts of holy Quran.
Islamic traditions are divided into three parts first is ‘Farz’ or strictly obligatory in nature, such as Five times prayer, Compulsory payment (zakat), Fasting, etc. Second, Haram: Those are strictly forbidden. Consumption of liquor, eating of pork etc. Third, Mandub: things which are advised to do but not compulsory. If Allah wished to make hijab inevitable, then that would have been incorporated in the category of Farz, therefore, providing immunity to patriarchal order in Islam seems to be the principal intention behind calling hijab an essential practice having no standing except as Mandub in the light of the holy Quran.
In one of the Hadiths, Prophet Mohammad is reported to have said to his sister-in-law Asma “O Asma! It is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation.” But nowhere does the Prophet warn that not wearing a hijab is haram, therefore, this statement of the Prophet is merely advise. If the Prophet allows demonstration of the face, why does it not include the head too? There is no other logic except to impose male superiority over women by the maulanas and mullahs who boastfully call themselves scholars of Islam.
Two judgments are frequently quoted to show hijab is an essential practice. One is by the Madras high court, which is not much relevant here because that judgment primarily deals with the issue of purdah in Islam. The other is by the Kerala High Court in Amnah Bint Basheer vs Central Board Of Secondary….wherein court after expressing its obiter dictum on the essentiality of hijab in Islam, made a very important observation, the court said ‘there is a possibility of having different views or opinions for the believers of the Islam based on ijithihad (independent reasoning). This Court is not discarding such views. The possibility of having different propositions is not a ground to deny the freedom if such propositions have some foundation in the claim.” If there is a difference of opinion on hijab in Islamic scholars, how can it be termed as Farz? Hijab supporters who rely on this judgment of the Kerala High Court must remember that the court has passed a judgment on the basis of the opinion of a few scholars only, therefore it is of no avail to come to the final conclusion on the obligatory nature of hijab.
If any practice is to be called essential in nature, then without following it one cannot be termed as a believer, is this trapping applicable to hijab? If the answer is yes, the subsequent question is why there is a difference of opinion among scholars on the compulsion of hijab or types of hijab? The constitution of India is liberal enough to protect the key stipulations of every religion, but it is equally a force deterrent to zealots endeavoring for the establishment of a theocratic state with a special leaning for one particular religion. With this note, let us hope that an opportunity before the full bench of Karnataka to correct gender discrimination in Islam would not go in vain.
