During the hearing of the appeals against the Judgment of the Karnataka High Court upholding the restriction on the wearing of Hijab in government schools, one of the Judges of the two-Judge Bench referred to an email that the Judges received.
Justice Hemant Gupta said, "We got an email from somebody that under Muslim law women cannot go out unattended, they have to go with somebody. Is that a requirement that they are asking for?"
The comment was made while discussing what will constitute an essential religious practice in Islam. Solicitor General Tushar Mehta had argued for the state of Karnataka that the parameters for determining essentiality of the a religious practice are well settled by Courts and that mere mention of something in the Quran will not make it an essential practice. He had argued that something mentioned in the holy book may also be permissible or ideal and not necessarily essential.
As per Islamic scholar Dr. Zakir Naik, there is a difference of opinion among scholars about the permissibility of women travelling without a Mahram (a close relative who is prohibited to marry the woman), the distance a woman can travel without a Mahram and the duration for which a woman can travel without a Mahram. However, according to Dr. Naik, women should not travel without a Mahram accompanying them, except in exceptional circumstances.
Tushar Mehta responded by referring to the restriction in some countries on women driving vehicles. He gave an example of a lady in a country where women can't drive, who is an international pilot, who is driven from her house to the airport by her husband.
During the hearing, Justice Gupta also said that in the Kerala High Court's Judgment on the right to wear Hijab, relied upon by the Appellants, the Court refers to Sharia Law. "Are we deciding cases on Sharia Law?", the Judge asked.
The Kerala High Court in the 2016 Judgment of Justice Muhamed Mustaque held that the wearing of Hijab is an essential practice. "The prescription of the dress code as above is essential or not has to be understood with reference to the Shariah injunctions", the Court had said in the Judgment.
The Karnataka High Court had refused to follow that Judgment of the Kerala High Court in Amanah Bint Basheer v. CBSE and had observed thus:-
"Firstly, it was not a case of school uniform as part of Curricula as such. Students were taking All India PreMedical Entrance Test, 2016 as a onetime affair and not on daily basis, unlike in schools. No Rule or Regulation having force of law prescribing such a uniform was pressed into service. Secondly, the measure of ensuring personal examination of the candidates with the presence of one lady member prior to they entering the examination hall was a feasible alternative. This 'reasonable exception' cannot be stretched too wide to swallow the rule itself. That feasibility evaporates when one comes to regular adherence to school uniform on daily basis. Thirdly, learned Judge himself in all grace states: "However, there is a possibility of having different views or opinions for the believers of the Islam based on Ijithihad (independent reasoning). In formulating our view, i.e., in variance with this learned Judge's, we have heavily drawn from the considered opinions of Abdullah Yusuf Ali's works that are recognized by the Apex Court as being authoritative vide SHAYARA BANO and in other several decisions. There is no reference to this learned authors' commentary in the said judgment. Learned Judge refers to other commentators whose credentials and authority are not forthcoming. The fact that the Writ Appeal against the same came to be negatived by a Division Bench, does not make much difference. Therefore, from this decision, both the sides cannot derive much support for their mutually opposing versions."
During a previous hearing, Justice Gupta had asked whether all faiths believe in the interpretation of Indian secularism as "Ekam Sat Vipra Bahuda Vadanthi", as contended by one of the Appellants. (read report)
Even during the hearing before the Karnataka High Court, the three-judge bench had asked the petitioners whether everything said in the Holy Quran is to be treated as essential religious practices and whether all injections in the book are to be treated as inviolable. This came after it was reported that the religious source cited by the petitioners before the High Court to argue the religious essentiality of Hijab also calls for violence against disbelievers, idol worshipers and women.
The hearing before the Supreme Court will continue tomorrow.