Salman Khurshid whose Mum didn't wear hijab- which, maybe, is why he said Sonia was his Mummy- writes in the Wire.
The hijab judgment has much to recommend but clearly remiss in reasoning on the point at hand. The high court celebrated secularism as part of the basic structure but failed to accept that wearing of hijab was essential to the practice of Islam.
So Khurshid accepts that his Mummy wasn't a good Muslim. She did not practice an essential feature of Islam. On the other hand, his wife- Louise- is accused to embezzling plenty of money. That is an essential practice of Congress.
The problem was in aligning two thoughts: secularism supports hijab or prohibits it.
Secularism does not support foot-binding, hijab, or stoning of adulterers. Embezzling money, however, is par for the course.
The high court took the latter view.
It did not prohibit the hijab. It upheld the right of Schools and Colleges to impose a common dress code. The School has a superior right. Religion could provide an immunity provided hijab was an 'essential practice'. But it isn't which is why the Muslim judge on the Bench did not wear it.
The court cited S.R. Bommai, “Several races have converged in this subcontinent. They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance….”
Which Muslims refused to heed. They set up Islamic Republics or did ethnic cleansing of Hindus and Sikhs where they could get away with it.
Yet the hijab did not get the benefit of accommodation and tolerance.
Nor did suicide bombing.
The court underscored developments in the law in Shayara Bano
triple talaq
and Indian Young Lawyers Association.
Sabarimala Temple
Curiously, having rejected hijab as “essential to Islam”, the court equated it with the wearing of visible items of religious identity, not to be encouraged in an educational institution. So the hijab is religious but not essential. If it had been otherwise, as for the five Ks of Sikh religion, an exception would have been allowed.
And the Muslim Judge on the Bench would have stood condemned as a person violating an essential feature of her Religion. The question is whether organs of the State managing institutions for the Muslim minority have to make girl students wear hijab as an essential practice of their religion. The answer is no. It is a religious practice but it isn't essential. Islam says a woman should not wear face covering when on Hajj or when in the company of other women or those mahram to her.
Interestingly, the Shirur Mutt judgement
where the Bench took on itself the onus of deciding what is or isn't an essential practice
was cited, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observations, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress…”
but permit the Khurshids to embezzle money to their heart's content without deeming it irreligious in any way
For essential religious practice, other than the doctrines of the religion, evidence was needed of the practice and it being tested on the trinity of constitutional values of ‘liberty, dignity and equality’. In other words Article 25 and 26 are subject to the latter rather than being integrated.
Salman Khurshid should wear hijab. He is as cute and sexy as any girl. Kejriwal has had the hots for him since 2012.
In the Indian Young Lawyers Association, the apex court had said, “There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality of religious practices… the test of essentiality is infused with these necessary limitations.” This goes beyond the doctrines of the religion or another way of saying that constitutional values have an order of preference rather than being an integral whole.
In other words, Court judgments have ratios in which one particular principle is held to have superior applicability to other principles.
A similar analysis in the Kashmir 4G case had placed security above liberty.
This has nothing to do with Religion or matters of Conscience.
For essential practice the court rightly focused on the holy Quran and Hadith to source the tenets of Islam. However, reading of the relevant Quranic verses and Hadith persuaded it that hijab is not an essential practice. In common parlance, full body covering includes the head, particularly where neck and bosom are mentioned. The court noticed that the Quran provides that women need the over garments so as not to be confined to their homes.
Sura xxiv 58-64) (Nur)
And say to the believing women
That they should lower
Their gaze and guard
Their modesty; and they
Should not display their
Beauty and ornaments except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty…
Which Religion encourages its women to flash their tits or waggle their naked buttocks?
The court sought support from the commentary of Abdullah Yusuf Ali
who was a Khoja and an ICS officer. Sadly, his marriage to an English woman did not work out too well.
that mentions jilbab, an outer garment, or veil to cover the body.
JIlbabab was disallowed by an English court which said hijab in schools were okay.
Does the court realise that it has implicitly endorsed the outer garment as an essential practice?
But such outer garments are not be worn indoors in classrooms. One does not wear a hat and trench-coat while sitting in class.
The high court considered possible other grounds to uphold the hijab in view of the jurisprudence of privacy, dignity and conscience. The latter was rejected for the absence of cogent evidence and Articles 19 and 21 rights (freedom of expression and choice ), for being subject to reasonable restriction. The restriction on grounds of decency, morality and public order was bypassed by the right of society over the individual.
This is nonsense. The Court did not say that burqa can't be worn in the streets and in other public places. It can't be worn in the class-room if the School stipulates otherwise.
The harm principle was given short shrift, although no harm was shown to be caused by hijab.
The harm was obvious. Girls had become polarized by the issue. Hindu girls were wearing saffron scarf and enmity between them and Muslim girls was being fanned up
An educational institution is hierarchical and imposes rules on students. Authority is undermined and harm is caused when students refuse to obey the rules.
In the absence of harm, relying on the three reasonable restrictions in Article 19 seems arbitrary.
In the opinion of a politician who considers the charges of embezzlement levelled against him and his wife as arbitrary rather than flowing from his own family's unjust enrichment.
Article 29, which provides the right to preserve the culture of minorities, was not considered.
Hijab harms Muslim women. It is not part of the culture of educated Muslim women in India. It is something insisted on by crazy terrorist organizations like Islamic State.
Article 25 guarantees freedom of conscience, subject only to public order, morality and health.
Hijab could be banned on all three considerations. It is immoral that a burden be placed on one sex. Public order had clearly been affected by the hijab row which soon escalated in a dangerous manner. Health is promoted by rational costume. Today it is hijab, tomorrow jilbab, day after there will be a return to full purdah. A woman will only leave her 'chaar divari' on the day of her death. Otherwise her only exposure to the sun would be in the andaroon courtyard. The trouble is the poor have no such inner luxury. Their women will have soft bones because of lack of Vitamin D.
Noticing the concept of ‘heckler’s veto’, the court nevertheless did not interfere with the order only because hijab was not an essential practice. But how that negates conscience remains puzzling.
There may be a separate case on the grounds of conscientious objection to letting other girls see your face on the grounds that they might not think you are, as you have informed them, prettier than Alia Bhatt when in fact you are a bearded 59 year old man.
School uniform is the given primacy for education. Uniform being an equaliser for pupils of different backgrounds, creating a sense of shared identity is familiar. But there are other views as well.
Muslim girls should be brainwashed into becoming ISIS cadres.
In any case, hijab is a marginal addition in compatible school colours. The inclusive practice of Kendriya Vidyalayas left the court unimpressed. Saying hijab-wearing girls stand out ignores that names, as indeed food preferences, do the same.
Kendriya Vidyalayas are co-educational. The affected Colleges are Single Sex.
Such personal preferences are respected and accommodated. Why then be rigid about the hijab and reject accommodation seen in other institutions?
Because the purpose is mischievous. The P.F.I and other extremist organizations are recruiting in this area. If violence breaks out, the minority will suffer disproportionately.
Interestingly, the court chose to ignore Malaysian judgments
which discriminate against minorities
but whether hijab is an Islamic practice cannot be confined to Indian data.
Nor can the question of whether Islam is motivating terrorism and secessionism around the world.
It remains unclear whether the restriction on hijab has been upheld as a binding government regulation or as an independent choice of schools.
Schools have to observe 'binding regulations'.
The maximum autonomy of private institutions held in T.M.A. Pai, and also underscored in this judgment, has yet been given a miss.
TMA Pai was 'minority' by reason of language (Konkani) and referred to unaided institutions. It is not relevant.
The court rejected the findings of independent researchers that ‘most Hindu, Muslim and Sikh women cover their heads outside their homes’ as a social reality.
This is irrelevant when class-rooms in single-sex institutions are concerned.
This touches an important dimension of our social existence. The court surely knows the practice of covering our heads, both women and men, when in a place of piety. Similarly, the wearing of a tika on the forehead, sporting a ghoongat or keeping a bodhi are established social behaviours.
So is dancing and singing. But they can't be done in the classroom.
Is there no place for these in constitutional values or is it that the pockets of ‘qualified public places’ like schools, courts, war rooms, defence camps etc. are subject to a different regime?
Obviously! I have a constitutional right to shit and piss. I don't have a constitutional right to enter a Court room and do so.
Will the many lady lawyers who frequent the premises of the Supreme Court too shed the hijab not questioned thus far?
Why is Khurshid's English so bad? He studied at Oxford. I suppose what he is getting at is that if the Supreme Court allows one thing why should a School not allow it too? The answer is that the purpose of the Court is different from that of a School. It is important that all manner of people gain access to courts. It is not the case that any type of person should be permitted to enter a School.
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