Hjab Ban Appeal #3: Adv. Nizam Pasha Argues Hijab Is Essential To Islam

On September 8th, 2022, Justices Hemanth Gupta and Sudhanshu Dhulia waded through the complicated facets of the right to religion in India while hearing arguments against Karnataka’s Hijab ban in educational institutions. 

Appearing for Aishat Shifa, a Muslim student barred from entering her college while wearing the hijab, Senior Advocate Devadatt Kamat and Adv. Nizam Pasha placed two broad arguments before the Bench. Mr. Kamat argued in the morning that the ban was constitutionally unjustified. Mr. Pasha, taking over in the afternoon, argued that the Karnataka High Court, while upholding the ban, misunderstood the essentiality of the Hijab in Islamic faith. 

Senior Advocate Devadatt Kamat continued his arguments from yesterday challenging the ban in the morning session. Yesterday, Mr. Kamat tried to convince the Court that the case must be referred to a Constitution Bench since it involved constitutional questions about making reasonable accommodations for religious practices. He submitted that the state has the responsibility to accommodate citizens’ diverse needs and beliefs so they can exercise their Freedom of Religion. He argued that the students in Karnataka were only asking to add a headscarf to the uniform—not to cover the uniform with a Hijab or similar garment. This was a reasonable accommodation that the state government must allow. 

Today, Mr. Kamat focused on his argument that wearing a Hijab is a religious practice protected by Article 25 of the Constitution of India, 1950. Mr. Pasha took over after the Court’s lunch break.

Adv. Nizam Pasha: The Karnataka HC Made Errors In Interpreting Quran While Deciding if Hijab is Essential to Islam

Advocate Mr. Nizam Pasha, also appearing for the same student, claimed that wearing the Hijab is an essential part of Muslim faith. He took the Bench through the Court’s jurisprudence on the ERP test, beginning from Shirur Math (1954), Durgah Committee, Ajmer (1961) and Bijoe Emmanuel (1968). In the years since these Judgments set out the test, Mr. Pasha argued that several 3, 5 and 7 Judge Benches have taken different views on what practices are protected under Art 25.

Cautioning the Bench, Mr. Pasha stated that this lack of clarity in essential religious practices needs to be settled by the 9-Judge Sabarimala Review Bench. He further stated in the Babri Masjid Judgment, a 5-Judge Bench said that the Court must steer clear of adopting one among many theological interpretations. He indicated a similar stance of the Bench in Shayaro Bano. The Court must only see if a true believer holds the belief in question. He attempted to impress upon the Court that Judges at the Supreme Court routinely decline to interpret religious scriptures themselves under the ERP test, relying instead on the beliefs of the community in question. 

The Karnataka HC, however, Mr. Pasha submitted, took it upon itself to interpret Islamic texts to decide the essentiality of Hijab. According to him, the High Court wrongly cites an unrelated verse of the Quran which states that no one can be compelled to convert to Islam to say that there are no compulsory practices in Islam.

Justice Dhulia asked Mr. Pasha to show him verses where the hijab is deemed necessary. Mr. Pasha points to a verse which asks women to draw Khimar (veil)  and for men to lower their gaze. Mr. Pasha read from Surahs (verses of the Quran). The verses he quoted state that women must cast outer garments over their persons to ensure that they are not known or molested.

Mr. Pasha tried to impress upon the Bench that the High Court misunderstood and miscontextualised the Quran while holding that the Hijab is not essential to Islam. He said the Court misplaced a footnote in which the translator states his opinion that the ‘jilbab’ is non-essential. The Court cites this footnote as the Prophet saying the Hijab is not mandatory.

The High Court said the Hijab is not mandatory as the Quran does not prescribe a punishment for not wearing it. Mr. Pasha argued that in Islam, there is no temporal punishment for spiritual acts. Punishment is served in the afterlife.

Finally, referring to Article 29(1), Mr. Pasha stated that wearing the Hijab is protected as a cultural practice as well, not only as a Religious practice. He attempted to compare the hijab to the turban in the Sikh faith. Justice Gupta cut him short,  suggesting that the two are incomparable—the turban has been recognised as essential to Sikhism by the Courts and the Constitution many years ago. 

The students will continue arguments on Monday, September 12th 2022.