Hijab in the Quran and in the Contemporary World by - Shruti Chakraborty

Hijab in the Quran and in the Contemporary World

Authored by - Shruti Chakraborty

Abstract

This article strives to examine the contours of the test of essential religious practice enshrined under the Indian Constitution in the light of the contemporary ‘Hijab Ban Case’ and the prevalence of Hijab in the Islamic texts and in modern day practice. This article delineates the concept of Hijab in Islamic religion and its constitutional test of essential religious practice.

Concept of Hijab according to Quran

Hijab is the covering of the head and neck of Muslim women and is seen as the symbol of their modesty and privacy in Islam. The concept of veil/covering has also been widely enumerated in the holy text of Islam- the Quran. The Quran in two vital verses prescribed the dress code for the women professing Islam as follows:-

1. In Chapter 24, Verse 31, the Al-Quran says: "And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment save to their own husbands or fathers or husband& fathers, or their sons or their husband& sons, or their brothers or their brother& sons or sisters' sons, or their women, or their slaves, or male attendants who lack vigour, or children who know naught of women's nakedness. And let them not stamp their feet so as to reveal what they hide of their adornment. And turn unto Allah together, 0 believers, so that ye may succeed." [1]
2. Subsequently, in Chapter 33, Verse 59, the Holy Quran commanded: "O Prophet, tell your wives and your daughters and the women of the believers to lower over them a portion of their jilbabs. That is more suitable that they will be known and not be harmed. And even Allah Forgiving and Merciful.”[2]

We can clearly see that the Holy Quran prescribes the dress code of veil to preserve the modesty and privacy of the Muslim women.

Is Hijab an Essential Religious Practice?

Article 25(1) of the Indian Constitution not only protects the freedom of religious opinion but also enables the individuals to practice, profess and propagate their religion. Now comes the question of what do we mean by essential religious practices? It means all those practices that are fundamental to a particular religion and not following them would amount of violation of the religion. The essential practices test was formulated in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [3], where the court stated that "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.".

However to validate whether the Wearing hijab is an essential religious practice, we have to analyse the practice of it with respect to the sources of Islam law.  We see that there is no “Quranic injunction” or mandate on wearing the hijab. It found that there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is. We also find a contradiction , where the holy Quran in its verses prescribe dress code for women  ( though not specifically mentioning the term ‘hijab’) , on the other hand the other sources of muslim law the hadith portray a contradicting opinion and this contradiction lowers the possibility of hijab being considered as an essential religious practice of Islam.

Perspective on Hijab in the modern world

The Religious Freedom Restoration Act (RFRA) provides additional protection at the federal level by barring the federal government and its officials from restricting the women's ability to practice hijab (either specifically or through generally applicable rules), unless the government can demonstrate that its action was the "least restrictive means" for achieving a "compelling governmental interest."[4]

In the modern world we see that people view hijab as oppressive to the modern culture and often considered it a ‘mismatch’ to the new fashionable dressing style of the present popular culture, where people portray the dressing style of celebrities and models. While we see that some people have a different approach towards this thinking. They feel that hijab is not simple a piece of clothing but an apparel to protect the modesty of a women.

In some countries women are required to cover themselves in burqa , hijab or niqab . For example, in countries such as Iran women must wear a hijab, and some wear a chador. In Saudi Arabia, women must wear a niqab, and in Afghanistan, under Taliban rule, women were required to wear a burqa. However, others feel that the hijab and other body coverings prevent women from being part of a modern, secular world. This is the case in Turkey, where the government outlawed women from wearing hijab in public places.

Hijab Case Paradox

In the Hijab Ban Case of Aishat Shifa vs The State Of Karnataka[5], a local college administration in Udupi district of Karnataka, denied entry to the Muslim girls wearing hijab. The girls being aggrieved from the order of the college administration denying their entry on the sole ground of wearing hijab approached the Hon'ble High Court of Karnataka seeking relief against the alleged infringement of Article 14, 19 and 25 of the Constitution. The petition by the girls before the court claimed that wearing of hijab is an essential religious practice and the ‘Hijab Ban’ amounts to the violation of the right to freedom of conscience and the right to practice and propagate religion. The interim relief is already denied by the Hon'ble High Court of Karnataka by passing an order in the matter[6] on February 10th, 2022. More than eight months after the Karnataka government banned the wearing of the hijab in state pre-university colleges, triggering a row and spawning debates across the country, a two-judge bench of the Supreme Court delivered a split verdict on it. While Justice Hemant Gupta upheld the order of Karnataka High Court order validating the ban and stating that it was only to promote uniformity and encourage a secular environment in the classrooms. Whereas Justice Dhulia stated that the point of whether the hijab was an essential religious practice under Islam or not was not essential for the determination of the dispute. He said that if the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom. In his opinion, the young girl petitioners had asserted their individual and not a community right.

Conclusion

The world is full of diversified individuals following their own cultures, rituals and practices. It is the personal autonomy of an individual to decide his/ her dress code as per his/ her choice of expression and will. In the context of India the Hijab Ban controversy le to closing of educational institutions in the State of Karnataka, thus depriving the students of their right to education. The controversy also led to public disturbances in the state. The Hon'ble Supreme Court rightly held in Masud Alam v. Commissioner of Police[7], that "India is a secular State and under Article 25 of the Constitution, all persons are at liberty to freely practise their religion. During the enjoyment of the right under Article 25 a clear distinction must be drawn between religious faith and belief and religious practices. The State only protects the religious faith and belief. If the religious practices run counter to public order, morality or health, then the religious practices must give way before the good of the people of the State as a whole".In India, every individual is free to make a choice of his dress code but the educational institutions where the dress code is notified by the state, might become a place of confrontation if the students are allowed to wear religious clothes. However, the students have the freedom to wear any dress of their own choice outside the educational institutions. The issues concerned with the safeguard of constitutional right to freely practice and propagate religion guaranteed under Article 25 of the Constitution must be determined on a case to case basis keeping in mind the essentiality of such religious practices in conformity with the tenets of that particular religion. In the instant hijab ban controversy, the wearing of hijab does not form the integral part of Islamic religion and hence, the protection under Article 25(1) cannot be guaranteed to such practice.

[1] Khattab, Dr. Mustafa, The Clear Quran, Book of Signs Foundation, USA (2016).

[2] Ibid.

[3] https://indiankanoon.org/doc/1430396/

[4]  42 U.S.C. § 2000bb-1

[5]  https://indiankanoon.org/doc/8682191/

[6] Smt. Resham & Anr. v. State of Karnataka & Ors., WP NO. 2347/2022 (Karnataka HC)

[7] https://indiankanoon.org/doc/1281743/