JECRC University

Research Methodology
Hijab : An Essential Religious Practice in Islam

Batch : 2020
Branch : B.Sc. LL.B (Hons.)

Submitted by : Priyanka Sharma Submitted to : Dr. Ritu Meena

Reg. no. : 20BSLN016 (Assistant Professor, Faculty of Law)
 Subject : Constitution
Area : Fundamental Right
Topic : Hijab is an essential religious practice in Islam
 ACKNOWLEDGMENT

I would like to extend my sincere thanks to Dr. Ritu Meena, Assist. Professor ,Faculty of Law,
for guiding me for along this work. I would also extend thanks to Dean, Head of the Department
and Faculty, School of Law, JECRC University, Jaipur, for having helped me in completing this
course successfully. I would also extend my thanks to the Library Staff who have helped me to
overcome the difficulties faced during this work.
I am also very thankful to my Parents and friends, without whom it would not have been possible
to complete this work.

Dated: 28/04/2022
Priyanka Sharma

20BSLN016
 DECLARATION

I, Priyanka Sharma , hereby declare that the Project Work titled “Hijab : an essential religious
practice in Islam” is an authentic record of work carried out by me under the supervision of Dr.
Ritu Meena, Assistant Professor, School of Law , JECRC University, Jaipur. I have incorporated
the suggestions given to me by her from time to time throughout this work. The book, articles,
documents and cases which I have made use of in this work are duly acknowledged. I further
declare that this thesis or any part of it has not previously formed the basis of award of any
degree, diploma or any similar title of recognition of any university or institution in India or
abroad.

Place: Jaipur Priyanka Sharma

Date- 28/04/2022
 TABLE OF CONTENT

Contents Page no.

Acknowledgement 3
Declaration 4
Abstract 6
Research objectives and research questions 7
Hypothesis 8
Literature survey 9
Questionnaire 14
Bibliography 15
Case law summary 16
Article summary 17
 Abstract
Hijab which according to muslim community is an essential religious practice. Muslim women
wear hijab to cover their hair in order to maintain modesty and privacy from unrelated males
either in public or at home. Now hijab became a big issue and heated topic all over India. Now
the muslim community is claiming that their right to wear hijab is covered under Article 25 of
Indian Constitution. A muslim girl was stopped in Karnataka from giving her exam because she
was wearing hijab. This is not an issue of a girl this is issue of whole country. Karnataka High
Court gave its judgement on this and held that wearing hijab is not and essential religious
practice of Islam. Muslim women are not denied of their right as they can wear hijab but not in
that place where there is fixed uniform. They claimed that Sikhs wear turban and it is not
prohibited then why they are prohibited from wearing hijab in schools. According to jurist hijab
is not an essential practice it was made for the protection of women and then it became a sign of
suppression over women. Quran gave clear rights to women 1400 years ago in marriage, family,
society and public life but in reality there has been a persistent denial of these rights. Within
several conservative sections, the dominant belief seems to be that muslim women must live a
life of subjugation within the 4 walls of a home. There is a demand for Uniform Civil Code
which will be binding on everyone then all religions will follow those guidelines of UCC not
their personal laws then they have to give up their respective religion based family laws.
 Research Objective and Research Questions

1. Is Hijab an essential religious practice in Islam under Article 25 ?

 What is the say of article 25 on hijab ?
 Is there any provision for hijab in muslim law which supports hijab ?
 Is there any comparison of turban worn by sikh to the hijab worn by muslim women?
 Are women punished for not wearing hijab if she does not wear it ?

2. Was hijab adopted for the protection of women from bad ones ?

 Who brought hijab and when he brought ?

 Was it for the rich class people for the protection of women ?
 Is there anyone who opposed this and refused to wear hijab ?
 What are the provisions to protect pardanashin lady ?

3. Is hijab a shacle in the progress of women ?

 Are pardanashin women allowed to put their point of view in public ?

 Are they subjugated by the male community ?
 Are they allowed to have education ?
 What restrictions hijab imposes on women ?

4. Is there the same system of wearing parda in other religions ?

 Do Hindu women or the women of other religion also wear parda ?

 Is the purpose of wearing parda same in all other religion ?
 Are women also live life of subjugation under parda ?
 Does parda restrict women like muslims to have access to fun in life by following their
own rules in life ?
 Hypothesis
1. Shariat does not allow muslim women to have much education and to work. Are Shariat laws
applicable on Indian muslims like the muslims of other countries who follows shariat ?

2. How hijab became a practice of Islam or is it essential practice ? what if a woman resist to
wear hijab will she be deserted from islam or are there any rule for this ?
What is Hijab?

Hijab is a scarf or clothing worn by Muslim women to cover their hair in order to maintain
modesty and privacy from unrelated males either in public or at home. The concept, however, is
not unique to Islam but embraced by other religions too such as Judaism and Christianity.

Mention of hijab : The tradition of wearing hijab is deeply rooted in Islam, it is not mentioned
in Quran but the Khimar. Verse 59 of Surah Al-Ahzab, states, "O Prophet, tell your wives and
your daughters and the women of the believers to bring down over themselves of their outer
garments. That is more suitable that they will be recognised and not be abused. And ever is Allah
forgiving and merciful."

History of hijab : Historic pieces of evidence suggest that veiling was not introduced in Arabia
by the last Prophet of Islam, but already existed there and was associated with high social status.

Sura 33:53 of Quran states, "And when you ask [his wives] for something, ask them from behind
a partition. That is purer for your hearts and their hearts." The verse descended upon the Islamic
community in 627 CE and the term for donning the veil, darabat al-hijab, was used
interchangeably with "being Muhammad's wife". As Islam propagated through the Middle East
to parts of Africa and Central Asia, and different societies around the Arabian Sea, it
incorporated local veiling customs and influenced others.

However, the veil was neither compulsory nor widely accepted by many generations after
Mohammad but gained momentum after male scriptural and legal scholars began using their
religious and political authority to regain the dominance they lost in society due to the Prophet's
egalitarian reforms. Soon, the Upper-class Arab women adopted veiling while the poor ones
were slow to adopt as it interfered with their work in the fields. The practice was both adopted as
an appropriate expression of Qur'anic ideals regarding modesty and as a silent announcement
that the women's husband was rich enough to keep her idle. The dress code was seen as a way to
avoid harassment and unwanted sexual advances in public and works to desexualize women in
the public sphere to allow them to enjoy equal rights of completely legal, economic, and political
status. However, controversy erupted over the dress code and people from all backgrounds
questioned the donning of hijab and what it stood in terms of women and their rights. People
questioned whether in practice the hijab was truly a female choice or if women were being
coerced or pressured into wearing it.

Different kinds of Islamic clothing :

1- Hijab: It is a headscarf that covers the hair and neck.
2- Niqab: It is a veil that covers the face and head, keeping the eye area open.
3- Burqa: It covers the whole body of a woman. It can either be a one-piece garment or a two-
piece garment.
4- Khimar: It is a long scarf that covers the head and chest but keeps the face uncovered.
5- Shayla: A rectangular piece of cloth wrapped around the head and pinned in place.
Case laws :
Amnah Bint Basheer v. Central Board of Secondary Education (23 July 2015)

1. The prescription of dress code for All India Pre-Medical Entrance Test-2016 is questioned in
this writ petition. The first petitioner is a candidate appearing for the entrance test. The 2nd
petitioner is the father of the first petitioner.

2. The parties profess Islam by faith. They challenge the prescription of the dress code on the
ground of violation of fundamental right as guaranteed under Article 25(1) of the Constitution.

3. The Central Board of Secondary Education (Board) has been entrusted with the task of the
conduct of Pre-Medical Entrance Test. In the wake of large-scale malpractices in the entrance
test during the previous years, the Board decided to prescribe the dress code. It has been noted
that various methods have been adopted by the candidates for copying. It appears that there were
instances of taking electronic gadgets underneath the dress. These ingenious practices adopted by
the candidates even W.P.(C).No.6813/2016 resulted in cancellation of the examination earlier
conducted, by the orders of the Hon'ble Supreme Court. Therefore, in order to ensure credibility
and transparency in the examination, the Board prescribed the following dress code.

a) Light clothes with half sleeves not having big buttons, brooch/badge, flower,etc. with
Salwar/Trouser.

b) Slippers and not the shoes."

4. The petitioners would submit that the dress code prescribed as above would offend the
religious prescription of the dress code, prescribed for women in Islam and therefore, this would
negate the fundamental right as guaranteed under Article 25(1) of the Constitution of India.

Then the only question remains is the essential practice as above would offend the public order,
morality, and health or is it necessary to regulate such essential practice to give effect to other
provisions of Part III of the Constitution

:- The right of women to have the choice of dress based on religious injunctions is a fundamental
right protected under Article 25(1), when such prescription of dress is an essential part of the
religion. As has been noted above, that right can be negated only in any of the circumstances
referred under Article 25(1). The attempt of the Board to ensure transparency and credibility of
the examinations also cannot be ignored by this Court. However, the approach of the Court is
always to harmoniously accommodate the competing interest without there being any conflict or
repugnancy. The interest of the Board can be safeguarded by allowing the W.P.
(C).No.6813/2016 invigilator to frisk such candidates including by removing scarf. However,
safeguard has to be ensured that this must be done honoring the religious sentiments of the
candidates. Therefore, women invigilators can be permitted to frisk such candidates.

Karnataka Hijab case

Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice J M Khazi heard petitions on
the hijab row filed by the students. The court passed an interim order allowing the opening of
schools but insisted that the students avoid wearing religious clothes until the court pronounce a
verdict on the matter. On February 9, the Karnataka High Court referred the Hijab issue to a
larger bench. Meanwhile, Section 144 has been imposed in Bengaluru around educational
institutions and no protests within 200 metres can take place for the next two weeks.With the
hijab controversy intensifying in Karnataka, the Basavraj Bommai government on 8 February
2022 announced the closure of schools and colleges for the next three days. The Chief Minister
of the state appealed to the people of Karnataka to maintain peace and harmony.

Countering the petitioners, Navadagi said the right to wear the headscarf falls under the category
of 19(1)(A) and not Article 25 as has been argued by the Muslim students.

Deeming the hijab an essential religious practice would affect the personal freedom of Muslim
women, Karnataka’s advocate general Prabhuling Navadagi argued in high court on Tuesday on
the eighth day of hearing on petitions filed by students of Udupi government preuniversity
college contesting the ban on wearing headscarves inside classrooms. If the wearing of a hijab is
recognised as an essential religious practice by way of a court order, all Muslim women would
be obligated to wear it, including those who do not want to do so, Navadagi said, representing
the state government.
“It hits at the liberty of that individual. The choice to wear what we want and choose not to wear
what we do not want. Every woman of every faith has that choice. There cannot be religious
sanction by way of judicial declaration,” he told the bench of chief justice Ritu Raj Awasthi and
justices Krishna S Dixit and JM Khazi. He mentioned the ban on wearing a hijab in public places
in France and Turkey. At this point, justice Dixit intervened and said that it depends on the
constitutional policy of every country. Navadagi then said that he only wanted to mention that
there was no such prohibition in India.
The state government has invoked Section 133 (2) of the Karnataka Education Act, 1983 which
requires a uniform style of clothes to be worn compulsorily by the students. The private school
administration can choose a uniform of their choice.
Questionnaire

Question asked to muslim woman ;

1. Are pardanashin ladies subjected to live under subjugation ?

Answer : Yes

2. Is hijab imposable on every girl/woman ?

Answer : No

3. Is there any difference between hijab and parda ?

Answer : No

Questions asked to jurist ;

1. Do you think hijab is just for the safety of women

Answer : No

2. should hijab be allowed in schools ?

Answer : No

3. If a woman does not wear hijab then does it mean that she is not obeying Islamic Law ?

Answer: No

4. Should UCC be implemented in India ?

Answer : Yes
Bibliography

 Books referred :
1. Bare Act, The Constitution of India, 255, Lexis Nexis Publication, 2021
2. Dr. JN Pandey, Constitutional Law of India, Central Law Agency, 58th edition, 2021
 Website visited :
1. https://m.jagranjosh.com/general-knowledge/history-of-hijab-in-islam-1644244440-1
2. https://www.hindustantimes.com/india-news/right-to-wear-hijab-not-under-article-25-
govt-101645552770185.html
3. https://www.legalserviceindia.com/legal/article-7987-right-to-expression-v-s-right-to-
hijab.html
 Case law Summary

In Amnah bint basheer v. CBSE , there was dress code prescribed for PMT examination as the
ingenious practices adopted by the candidates even W.P.(C).No.6813/2016 resulted in
cancellation of the examination earlier conducted, by the orders of the Hon'ble Supreme Court.
Therefore, in order to ensure credibility and transparency in the examination, the Board
prescribed the following dress code. Article 25(1). The attempt of the Board to ensure
transparency and credibility of the examinations also cannot be ignored by this Court. However,
the approach of the Court is always to harmoniously accommodate the competing interest
without there being any conflict or repugnancy. The interest of the Board can be safeguarded by
allowing the W.P.(C).No.6813/2016 invigilator to frisk such candidates including by removing
scarf. However, safeguard has to be ensured that this must be done honoring the religious
sentiments of the candidates.

In Karnataka hijab case , the court passed an interim order allowing the opening of schools but
insisted that the students avoid wearing religious clothes until the court pronounce a verdict on
the matter and referred this case to the larger bench. The state government has invoked Section
133 (2) of the Karnataka Education Act, 1983 which requires a uniform style of clothes to be
worn compulsorily by the students. The private school administration can choose a uniform of
their choice. The Karnataka High court held that hijab is not an essential religious practice in
Islam. And the present status of this case is still pending as the high court referred this case to the
bench of supreme court and this act of the high court was debatable.
Article summary
The tradition of wearing hijab is deeply rooted in Islam , it is not mentioned in Quran but the
Khimar. The veil was neither compulsory nor widely accepted by many generations after
Mohammad but gained momentum after male scriptural and legal scholars began using their
religious and political authority to regain the dominance they lost in society due to the Prophet's
egalitarian reforms. Soon, the Upper-class Arab women adopted veiling while the poor ones
were slow to adopt as it interfered with their work in the fields. The dress code was seen as a
way to avoid harassment and unwanted sexual advances in public and works to desexualize
women in the public sphere to allow them to enjoy equal rights of completely legal, economic,
and political status. However, controversy erupted over the dress code and people from all
backgrounds questioned the donning of hijab and what it stood in terms of women and their
rights. Article 25 is an important provision in the Indian Constitution which not only gives
people of every religion to profess, practise their religion but also keeps a check on the
religious practices so that they do not violate the rights of others and doesn’t violate the
other provisions of the Constitution.
Article 19(1)(a) gives right to freedom of speech and expression and hijab also comes under the
freedom of expression. The question is not the women can wear hijab , the question is ,is hijab an
essential practice in Islam .