High Court Misquoted Quran To Hold Hijab Is Not Mandatory In Islam : Nizam Pasha Tells Supreme Court [Day 3]

The Supreme Court, on Thursday, continued hearing the batch of petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim girl students in some schools and colleges in the State. The matter was heard by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. Today, the arguments were commenced by Senior Advocate Devadatt Kamat whose submissions pertained to Article 25 of the Indian Constitution, application of the Heckler's Veto in India, bonafide practice versus belligerent display of religion, difference between freedom of conscience and religion and; whether the Government Order was administratively sound. A detailed report of his arguments can be found here. The arguments of Sr. Adv. Kamat were followed by Adv. Nizam Pasha, who focused on the injunctions in Islamic law regarding hijab.Are all Religious Practices or only Essential Religious Practices protected?In order to answer the question of what was the test to be used for essential religious practice, Adv. Pasha quoted from the judgement in Commissioner, Hindu Religious Endowments, Madras v. Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 and stated–"The Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation."Stating that the above argument of the Attorney General that only essential practices of religion were protected under Article 25, was rejected by the seven judge bench in the Shirur Mutt case, he further quoted from the judgement– "The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself."He submitted that it was in the judgement of Durgah Committee, Ajmer v. Syed Hussain Ali and Ors, where a five judge bench had formulated the essentiality test. He further stated that the law on essential practice was merely by way of an obiter in the said judgment. Continuing his arguments, and highlighting the dilemma of whether all religious practices or only essential religious practices were protected, he stated–"The question whether all religious practice or only essential religious practice are protected is a question on which 7-judges, 5-judges and 3-judges have taken different views. In Bijoe Emmanuel, 3-judges held that any belief which is held conscientiously held is protected. So not just essential practices, but any practice which is conscientiously held is protected. So this put your lordships in a dilemma. There is variance between 7-judges and 5-judges and the 9-judges bench is now examining."Reading of Scriptures: Can Court interpret religious doctrines?Before referring to the scriptures, Adv. Pasha gave a word of caution to the bench which was resounded by 5-judges in Babri Masjid judgment. He stated that in the Babri judgment, the court did not enter into an area of theology and said that the true test was to see if a true believer holds that belief. Thus, as per the judgement, the Court must steer clear out of adopting one among the many interpretations of theological doctrines. He quoted from the Babri judgment– "Our court is founded on Constitutional order and we must reject the attempt to lead the Court into interpretation of religious doctrines."He further submitted that–"Law is laid down on the interpretation of religious scriptures. There are multiple sects and multiple views in religion and each individual's understanding of scripture must be protected. In Shayra Bano case, the Court did not interpret scriptures. It was only the judgment of Justice Kurian Joseph which proceeded on scriptures. The majority judgment went by the statute."Necessity of Hijab: Misinterpretation of Islamic Verses by Karnataka High CourtAdv. Pasha, in the post-lunch proceedings on the matter, commenced his submissions by elaborating upon Mohammedan Law. He stated that the sources of Mohammedan Law were – Quran, Sunna of Hadis (sayings and traditions of Prophet), Ijma and Qiya. He argued that the High Court had misinterpreted Islamic verses to hold that Hijab was not mandatory. a) "No compulsion" was in context of conversion to IslamAdv. Pasha submitted that the High Court had referred to an unrelated verse, which stated that nobody can be compelled to convert to Islam, to hold that Hijab was not mandatory. At this juncture, Justice Gupta asked Adv Pasha to show the bench the verses holding Hijab as necessary. Here, Adv Pasha referred to Surah An-Nur Ayat 31 (24:31 Quran). b) Jilbab v. Hijab: Issue of TranslationWhile drawing the attention of the court to the footnotes of the High Court judgment, Adv Pasha stated that the High Court had referred to the opinion of a translator and not the translation of the text itself. He stated...

High Court Misquoted Quran To Hold Hijab Is Not Mandatory In Islam : Nizam Pasha Tells Supreme Court [Day 3]

Padmakshi Sharma

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