By Raha Rafii
In the last few decades, courts in India have been increasingly settling matters of whether details of Muslim personal law, which include matters of marriage, divorce, and inheritance, continue to be applicable. During the British colonial period, the various religious communities in India had been governed by their own personal status laws,[1] and until recently were allowed to apply them in court. In cases such as Mohd. Ahmad Khan v. Shah Bano Begum[2] and Shayara Bano v. Union of India,[3] the secular courts determined the validity of Muslim personal laws by interpreting the Islamic sources themselves based on Qur’ān translations and compiled treatises of Indian Anglo-Muhammadan law,[4] establishing precedent.
On March 15, 2022, the Karnataka High Court upheld the ban[5] on the wearing of ḥijāb by students in government schools in the state of Karnataka, India. Although the issue was not one of Muslim personal law, the Court relied heavily on procedure enacted by the courts in Shah Bano and Shayara Bano, regularly citing these cases. Like the courts in the previous cases, the Court made a decision by interpreting the sources of Islamic law for itself via references to colonial-era Qur’ān translations and Anglo-Muhammadan legal treatises.
In the hearing for upholding the February Interim Order[6] banning ḥijāb, the Court identified the issue of whether ḥijāb was “part of essential practice in Islam” as one of the main questions for consideration, and thus whether Article 25[7] of the Constitution applied. One of the main ways the Court made the determination that it was not an essential practice[8] was by directly examining sources of Islamic law, including the Qur’ān, and referencing scholars it considered reliable historians of Islamic religion. It ultimately decided that the wearing of ḥijāb was a “cultural” rather than religious practice and therefore not protected by Article 25, which protects the right “freely to profess, practise and propagate religion.”
In its interpretation of the Islamic sources, the Court utilized several principles: compliance with “constitutional values,” interpretation through the methods of the religious tradition itself, and the examination of judicial intent when looking at specific sources—in this case, ḥadīth, or first-hand reports of the words and deeds of the Prophet Muhammad.
In a reference to Indian Young Lawyers Association v. State of Kerala,[9] the Court stated that “the essential part of a religion is primarily to be ascertained with reference to the doctrine of that religion itself.”[10] It then referred to two Islamic legal treatises produced under British rule: The Principles of Mahomedan Law[11] (20th edition) by Dinshah Fardunji Mulla and The Outlines of Muhammadan Law (5th edition) by Asaf A.A. Fyzee.[12] Mulla was a Parsi legal treatise writer and judge who wrote textbooks on Muslim as well as Hindu law.[13] In his Principles, Mulla delineated four sources of Islamic law: the Qur’ān, the ḥadīth, ijmāʿ (“a concurrence of opinion of the Companions of Mahomed and his disciples”), and qiyās (“analogical deductions derived from a comparison of the first three sources when they did not apply to the particular case”).[14] He also wrote that the Indian Courts’ interpretation of “Mahomedan Law” should not consist of direct interpretation of the Qur’ān to propose new rules of law, nor interpret the Qur’ān “in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority.”
Fyzee—a Muslim scholar who had a lustrous legal career, served as a professor of jurisprudence, and contributed to modern Ismaili studies—was paraphrased by the Apex Court in Shayara Bano, which prohibited triple talaq (husband-initiated unilateral divorce).[15] The Court cited this section of the Apex Court’s order, where Fyzee covered the same four sources of Islamic law as Mulla. However, Fyzee added that the Qur’ān was “the first source of law” and delineated the hierarchies of the binding nature of religious actions, including mandatory and recommended.[16] However, in regard to issues not clearly delineated by Qur’ān or ḥadīth, the Court cited Fyzee’s exhortation that the Indian Muslim community had to “follow the dictates of secular reason in accordance with certain definite principles,”[17] a principle the Court also emphasized.
The Court considered arguments from both parties on the ḥijāb ban in reference to verses in the Qur’ān and relevant ḥadīth (“Ahadith”).[18] While the Court relied on the methods of the Apex Court in Shah Bano to interpret the Qur’ān, it went further in considering whether ḥijāb was considered mandatory in ḥadīth collections.
The Court chose among English translations of the Qur’ān from a variety of periods, including those of Marmaduke Pickthall and Muhammad A.S. Abdul Haleem, as well as Muhammad Muhsin Khan and Muhammad Taqi-ud-Din al-Hilali’s edition; the latter is issued by the King Fahd Complex for the Printing of the Quran. The Court settled upon the 2019 reprint of the translation by Abdullah Yusuf Ali, an Indian civil servant, lawyer, and Islamic scholar whose translation was first published in 1934. Regarding this selection, the Court stated that, in addition to its use by the Apex Court, Ali “views the verses of the scriptures in their proper perspective,” “provides the unifying principles that underlie,” and “has a systematic completeness and perfection of form.”[19] The Court was also convinced by Ali’s original preface that he did not “air views of [his] own” and where traditional commentaries differed, he chose “the most reasonable opinion from all points of view.[20] The Court explained that its notions of reason and justice meant compliance with constitutional values.[21]
Having established its authoritative translation, the Court then determined that Sūra 2:256—“let there be no compulsion in religion”—applied to the wearing of ḥijāb, thus proving that it was not mandatory and therefore “essential.”[22] The Court then addressed the etymology of the word ḥijāb itself, noting that it had multiple meanings, including a separating screen (purdah). Further observing that the word ḥijāb itself did not appear in the Qur’ān, “although commentators may have employed it,” the Court then referred to Ali’s footnote to Sūra 33:59. Ali had written that for Muslim women, ḥijāb was not mentioned; rather, they were required only to be modest in dress and cover their bosoms.[23] The Court noted that the absence of punishment or penalty for not doing so meant that any covering was “recommendatory, if at all it is.”[24] It then further added that ḥijāb, “at the most, is a means to gain access to public places and not a religious end in itself.”[25]
In respect to mention of the ḥijāb as a head-covering in the ḥadīths, the Court utilized what it considered reliable scholarship to examine judicial intent. It again referred to Ali’s footnotes where he stated that veiling was both a form of protection for women due to social conditions “then existing in Medina” as well as a mark of distinction that went back centuries in the pre-Islamic Near East. To further its point that “wearing hijab is not religion-specific,”[26] the Court then curiously cited a passage from a “research paper” by Sara Slininger of Centralia, Illinois; it had actually begun its Order with another passage by Slininger on the social context of ḥijāb in the pre-Islamic world.[27]
Despite the Court’s emphasis on the authoritativeness and reliability of the textual sources it cited, its apprehension did not extend to Slininger, who at the time of producing the paper was “a senior history major with teacher licensure” at Eastern Illinois University—that is, an undergraduate student who prepared a paper for student publication and not a postgraduate, let alone established, specialist.[28] Why the Court chose to cite this paper is not made explicit, although it is expedient that Slininger’s paper is open-source and directly downloadable as a pdf. At no point did the Court bring up the question of her academic credentials, or the validity of a student-produced paper based on secondary sources. Through paragraph-long citations of Slininger’s paper, the Court determined that ḥijāb was not a religious obligation but mere apparel that provided “a measure of social security,” and that “some elements of religion permeated into this practice.”[29]
The Court’s handling of Slininger’s paper was in stark contrast to its analysis of the credentials of Muhammad Muhsin Khan. Khan was mentioned earlier as a translator of the Qur’ān and Ṣaḥīḥ al-Bukhārī, a well-established and widely-circulated ḥadīth collection. The Court admonished the Muslim petitioners who had appealed the Interim Court Order using Khan’s translation of Ṣaḥīḥ al-Bukhārī. It stated that petitioners had neglected to mention Khan’s credentials in the field of Islamic texts, noting that the ḥadīth volume described him only as having had “a prominent position in the field of medicine.”[30] The Court then stated that, even with Khan’s ḥadīth text, the practice of covering the head could not be interpreted as obligatory practice. It then added that by “the very logic of Islamic jurisprudence,” a recommended act in the Qur’ān could not be made mandatory in the ḥadīth literature. The Court thus determined that wearing ḥijāb was not a mandatory Islamic practice protected by the Constitution.
Notes:
[1] “In the News: Triple Ṭalāq Criminalized in India,” Islamic Law Blog, December 12, 2018, https://islamiclaw.blog/2018/12/12/in-the-news-triple-%e1%b9%adalaq-criminalized-in-india/
[2] Shah Bano claimed a right of maintenance under Indian civil law after her husband divorced her. Her husband denied such a right, stating that Muslim Personal Law limited her rights only to the ʿidda period after divorce. The Court ruled in Shah Bano’s favor. See Express Web Desk, “What is Shah Bano case?,” Indian Express, August 23, 2017, https://indianexpress.com/article/what-is/what-is-shah-bano-case-4809632/; “Mohd. Ahmed Khan v. Shah Bano Begum And Others,” SHARIAsource, August 5, 2019, https://beta.shariasource.com/documents/188; Nikhil Goyal, “The Danial Latifi Case: Shah Bano Redux,” Islamic Law Blog, November 10, 2020, https://islamiclaw.blog/2020/11/10/the-danial-latifi-case-shah-bano-redux/.
[3] “Shayara Bano v. Union of India, etc. (Supreme Court of India): Judgment on Constitutionalism of Triple Ṭalāq,” SHARIAsource, September 11, 2017, https://beta.shariasource.com/documents/2982.
[4] See Sohaira Siddiqui, “The Birth of Anglo-Muhammadan Law,” Islamic Law Blog, July 7, 2020, https://islamiclaw.blog/2020/07/07/sohaira-siddiqui-guest-editor/.
[5] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” SHARIAsource (April 19, 2022), https://beta.shariasource.com/documents/4452.
[6] “Karnataka High Court Interim Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Feb. 14, 2022),” SHARIAsource, April 13, 2022, https://beta.shariasource.com/documents/4448.
[7] See The Constitution of India, available at: https://legislative.gov.in/sites/default/files/COI…pdf .
[8] Raha Rafii, “Karnataka High Court Order Upholds Ḥijāb Ban in Government Schools,” Islamic Law Blog, May 19, 2022, https://islamiclaw.blog/2022/05/19/karnataka-high-court-order-upholds-%e1%b8%a5ijab-ban-in-government-schools/.
[9] See Kantaru Rajeevaru v. Indian Young Lawyers Association, Supreme Court of India, available at: https://www.sci.gov.in/pdf/JUD_6.pdf and https://main.sci.gov.in/pdf/LU/11052020_082426.pdf.
[10] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” SHARIAsource, April 19, 2022, https://beta.shariasource.com/documents/4452, 67.
[11] D.F. Mulla, Principles of Mahomedan Law (Bombay: Times Press, 1324/1907), https://beta.shariasource.com/documents/4419.
[12] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” 58-59.
[13] Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press, 2014), 114.
[14] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” 58.
[15] “In the News: Triple Ṭalāq Criminalized in India.”
[16] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” 59.
[18] Ibid, 57.
[19] Ibid, 60.
[20] Ibid, 61.
[21] Ibid, 57.
[22] Ibid, 62.
[23] Ibid, 64.
[24] Ibid, 65.
[25] Ibid, 66.
[26] Ibid, 69.
[27] Ibid, 15-16.
[28] Sara Slininger, “Veiled Women: Hijab, Religion, and Cultural
Practice,” Historia (2014), https://www.eiu.edu/historia/Slininger2014.pdf. The journal Historia is an undergraduate journal run by students at Eastern Illinois University (https://www.eiu.edu/historia).
[29] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” , 70.
[30] Ibid, 72.
(Suggested Bluebook citation: Raha Rafii, Karnataka High Court’s Interpretation of Islamic Sources: Ḥijāb is Not “Part of Essential Religious Practice in Islam”, Islamic Law Blog (May 27, 2022), https://islamiclaw.blog/2022/05/27/karnataka-high-courts-interpretation-of-islamic-sources-%E1%B8%A5ijab-is-not-part-of-essential-religious-practice-in-islam/)
(Suggested Chicago citation: Raha Rafii, “Karnataka High Court’s Interpretation of Islamic Sources: Ḥijāb is Not ‘Part of Essential Religious Practice in Islam,'” Islamic Law Blog, May 27, 2022, https://islamiclaw.blog/2022/05/27/karnataka-high-courts-interpretation-of-islamic-sources-%E1%B8%A5ijab-is-not-part-of-essential-religious-practice-in-islam/)