Dhavan quotes from Kerala HC decision : "Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram)"
Dhavan referring to the Kerala HC judgment which held hijab to be an essential practice.
Dhavan quotes from Ratilal Gandhi case: If this is the belief of the community and it is proved undoubtedly to be the belief of the community,-a secular Judge is bound to accept that belief-it is not for him to sit in judument on that belief.
Dhavan refers to Ratilal Gandhi case.
Dhavan : If it is showed that hijab is an established practice in Karnataka, no outside secular authority can say it is not.
Dhavan : Interstingly, Justice Mukherjee says in Vedas there is no mention of temples.
So you don't have to go to the text, you see if the practice is prevalant and if there are no malafides.
Dhavan : According to the tenets of the faith, if something has been followed, it is allowed, if it is bonafide, you don't have to to go back to the text. We have to examine if the practice is prevalant and is bona fide.
Justice Dhulia : Yes, precisely, it may or may not be Essential Religious Practice...
Dhavan: All I'm saying is that, in this impugned judgment the conclusion is that it is directory.
Justice Gupta : Mr.Dhavan, if there is an issue, which forum will decide? If a dispute arise.
Dhavan : What is the dispute, whether it is an essential practice. If all over India, hijab is practiced, lordships will only see if it is a bona fide practice.
Dhavan : The way out has been given in the Bijoe Emmanual decision, once it is shown it is a bona fide practice, it is permissible.
Justice Dhulia : Yes, take us through that. We don't want to refer to suras.
Dhavan : The conclusion of the High Court is puzzling. It says hijab is not mandatory due to absence of prescription of penalties.
Justice Dhulia : I think you argue other aspects.
Dhavan : This goes to the fundamentals. The point I am making, consistent with the fact that your lordships are not maulivs or pandits..
J Dhulia : That is why we are saying.