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Argument regarding women wearing pardah/ghoonghat in modern India

26. It is also submitted that even today, in modern India, one finds Hindu women covered by the Ghoonghat. However, Hijab, which is a traditional scarf worn by Muslim women to cover the hair and neck and sometimes the face, is different from Burqa, which is a tip to toe gown covering the entire body. Both, however, are types of veils worn by some Muslim women. Burqa is a word that loosely falls under the category of pardah or veil. It is stated that ‗Pardah‟ is a Persian word translated as curtain, veil, attire worn by women to mark their social and physical segregation from the rest of society by covering their bodies and/or faces. Pardah takes different dimensions depending on the country, place of origin and hence has numerous variations.

52. The petitioner has employed the term pardanashin interchangeably with burqa, ghoonghat, pallu, etc. and as indicative of someone under a veil. While the petitioner may equate pardanashin with individuals under a veil, such as women wearing burqas, it is essential to recognize the difference between the two.

53. In legal parlance, pardanashin woman would refer to those who are entirely secluded from the wider societal sphere or lack a comprehensive understanding of societal norms and reasoning. This strict interpretation is crucial for determining the applicability of special legal protections afforded to those classified as pardanashin. Such protections are designed to safeguard individuals who, due to their seclusion or lack of understanding, may be vulnerable to exploitation or undue influence.

Islam

72. The petition mentions that there is a difference between hijab and burqa, and burqa is a word that loosely falls under the category of pardah or veil. It is stated that there are two verses in the Qur'an in which Almighty Allah talks about the issue of decency and hijab, which deal with ‗hijab of eyes'. Thereafter, it is mentioned that another verse talks about a woman concealing the head and then using the loose ends of the scarf to conceal the neck and the bosom. It is further stated that as per Quran, the Islamic dress code for women does not only consist of a scarf that covers the head, the neck and the bosom; it also includes the overall dress that should be long and loose.

73. Thus, as per petitioner, she is well-within her rights to conduct herself in accordance with the tenets of her religion, including her choice of dress, as protected by Article 25 of the Indian Constitution.

74. In this regard, this Court notes that the issue regarding hijab or burqa being essential religious practices is an issue which is pending adjudication before the Hon'ble Apex Court. Background of the same is that the Three-Judge Bench of Karnataka High Court in case of Resham v. State of Karnataka 2022 SCC OnLine Kar 315 had held that hijab is not an essential religious practice of Islam, and the same would not be covered under Article 25 of the Constitution of India. Thereafter, the Division Bench of Hon'ble Apex Court in an appeal against the said judgment of Karnataka High Court, had delivered a split verdict in case of Aishat Shifa (Hijab Case-2 J.) v. State of Karnataka (2023) 2 SCC 1, which is now pending to be placed before a Three-Judge Bench of the Hon'ble Apex Court for adjudication. However, even though the issue has yet not been decided by the Hon'ble Apex Court, the petitioner has repeatedly mentioned in the petition that the right to wear a pardah, which is like a burqa/hijab, would be covered under Article 25 of Constitution of India. Be that as it may, since the issue is already sub-judice before the Hon‟ble Apex Court, this Court would not delve deeper into it.