AIMPLB appeals against the Karnataka HC’s upholding of hijab ban

THE All India Muslim Personal Law Board [AIMPLB] has challenged the Karnataka High Court's judgment holding that wearing a hijab is not an essential part of Islam. The Board has contended that the High Court's order is based on the erroneous understanding of the Islamic texts, particularly the primary and highest source of Islamic law, that is, the Holy Quran. It has been asserted that as far as interpretation of scriptures in the Holy Quran are concerned, there is a consensus amongst religious scholars of all schools of thought namely, Hanafi, Maliki, Shafai and Hambli, that the practice of hijab is 'wajib' (mandatory), a set of obligations, which if not followed, amount to committing 'sin' or becoming a 'sinner'. Wajib has been kept in the 'First Degree' of obedience.

A detailed affidavit to this effect shall be filed in due course. The appeal has also been joined by two Muslim women namely Munisa Bushra Abedi and Jaleesa Sultana Yaseen, who wear hijab and are executive members of the AIMPLB.

On March 15, the Karnataka high court's full bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S. Dixit and J.M. Khazi, held that the wearing of hijab is not part of the essential religious practice of the Islamic faith under Article 25 of the Constitution. The bench also held that the prescription of school uniform is constitutionally permissible, and therefore, not violative of Article 19(1)(a) of the Constitution. The bench also held that such prescription is not violative of the right to privacy, guaranteed under Article 21 of the Constitution. It also concluded that the Government Order [GO] issued by the state government this year prescribing school uniform does not suffer from lack of application of mind, as alleged by the petitioners in this case. No case is made out that the order is manifestly arbitrary, and therefore, violative of Articles 14 and 15 of the Constitution, the bench unanimously held.

In its appeal, the AIMPLB has contended that the four issues wrongly framed by the High Court do not address the core issue viz. whether or not it is necessary to consider the doctrine of essential religious practice where the petitioners have asserted their fundamental rights under Article 25(1) and 19(1)(a) of the Constitution, and consequentially, it resulted into the verdict which deprives the constitutional rights of Muslim girls to practice the wearing of hijab along with the school uniform. It adds that while deciding the issues, the high court laid too much emphasis on propositions which result in discrimination, exclusion and overall deprivation of a class from the mainstream public education system, apart from the fact it seriously encroaches upon an individual's sacrosanct religious belief.

"The idea of bringing uniformity cannot be placed on such a high pedestal which amounts to negation of other constitutional and basic rights of different groups which run all through our Constitution vein", the appeal contends. It states that the Karnataka Government's GO directly discriminates against Muslim girls.

"The G.O. dated 05.02.2022 is on the face of it blatantly partisan and communal in colour appeasing to hecklers demand. Ironically, the impugned G.O. dated 05.02.2022 was upheld as being in consonance with "constitutional secularism" ignoring that the same leads to discrimination against Muslims in General and Muslim girls in particular whose right to education is denied", the appeal reads.

It adds that, "The High Court has created a distinction between the principles laid down in the case of Bijoe Emmanuel by giving different contextual meaning (as a case of discipline) and on the other hand the practice of Hijab, is reflected as if it was a case disturbing the entire uniform that too when this minor variation (of covering the head like the Sikh's do) can be reasonably accommodated within the constitutional norm being part religious practices. Hence laying too much emphasis on bringing "uniformity" in the uniform without accommodating a person of one religion 'to cover her hair with a piece of cloth' is travesty of justice. The impugned judgment also ignores the doctrine of reasonable accommodation", the appeal reads.

The appeal adds that the ground reality is that Muslim girls are compelled to remove their hijab to avail themselves of the right of education, at the cost of self-respect and dignity.

"The impugned Judgment further erases and invisibles basic religious freedom and freedom of expression, agency of Muslim women, principles of equality, fraternity and actively perpetuates discrimination, communal discord and intervenes in the protected area of privacy. Moreover, the impugned Judgment legitimizes "Hijab ban" in educational institutions in the State of Karnataka, which goes against the very basic structure of secularism. It is submitted that the impugned judgment will lead to grave encroachment on the children of Muslim community and shall lead to a situation where a large section of Muslim Girls will be deprived from stream of general education leading them to remain in vulnerability", the appeal reads.

The appeal has been filed through Advocate-on-Record M.R. Shamshad.