BENGALURU: While the Chief Justice-led bench of the Karnataka High Court is hearing pleas on the hijab row, Supreme Court and High Court advocate KV Dhananjay says the hijab has a religious significance to the practice of Islam and that the petitioner girls have a right to wear it over and above the prescribed uniform. If that right has to be curtailed, it can only be done by the legislature through a religion-neutral statute, he feels: Excerpts from an interview:
The hijab issue is being debated in the Karnataka High Court. What are your thoughts on the matter?
I am surprised at the argument of the petitioners. It was unnecessary for them to claim that wearing the hijab in public place is an ‘essential and inviolable’ practice of Islam and to ask for a judicial ruling to that effect. I am saying this because, as against what is defined in the religious texts, usage is important.
Can you elaborate?
In principle, the petitioners are claiming in the court that wearing the hijab is so fundamental to the practice of Islam that the petitioner girls do not even have the freedom to not wear it in a public place should they take their religion seriously. Such an argument in this day and age is very difficult to follow.
But, if the petitioners do not claim that wearing the hijab in public is an essential practice of Islam, will they be able to make their case before the high court?
The petitioners can and must make their case on the ground that wearing the hijab has a religious significance to the practice of Islam and that the authorities are making a hostile discrimination against that practice by banning hijab wearing in their school and college. The real issue here is not one of Islamic theology, but an issue of plain fairness and kindness. Unfortunately, the petitioners have needlessly made this case one of Islamic theology.
Can a judicial body satisfactorily give a ruling on whether wearing the hijab is an essential practice of Islam?
When it comes to interpretation of a statute, no court of law can just read one provision and derive its meaning satisfactorily. In order to ascertain the meaning of a statutory provision, the entire statute should be read as a whole. Similarly, in order to judicially make sense of any particular Sura in the Quran, the court will have to traverse the entire book. Even when it somehow does it all with painstaking difficulty over a very long period, all that it will have really done is to deduce what was conveyed to the faithful in the 7th century; not what meaning those declarations should bear in the 21st century. The meaning of words do change over time, in some cases, dramatically.
So, you are saying that the petitioners had a much simpler option that they could have pursued before the High Court?
Obviously. What the Karnataka Government and its officers have done by banning wearing of the hijab over a school or college uniform is mischief. The hijab has a religious significance to the practice of Islam and nobody will deny that. So, the petitioners do have a right to wear it over and above the prescribed uniform.
If that right is to be curtailed, it can only be done by the legislature through a statute that is religion-neutral. We have no such statute in Karnataka. Interestingly, we may not even be able to have one – given the complex nature of religious symbols prevalent in our rich and diverse country. The girls only had to plead that they were subject to religious discrimination and that too, through a mere Government Order.