The Supreme Court continued hearing in the petition challenging the Karnataka High Court judgement upholding the ban on hijab in religious institutions for the third day today. A bench of Justices Hemant Gupta and Sudhanshu Dhulia is hearing the matter, where a lot of arguments already have been made in the last two days.
On day 1 of the hearing on September 5, petitioner’s advocates Dushyant Dave and Rajeev Dhawan tried to make it a case of religious practice, saying that the court will decide whether wearing a headscarf was an “essential religious practice” to be followed by women. But the bench rejected this point, and said that question before the court was whether the government has the authority to regulate a dress code.
Justice Hemant Gupta said that there are dress codes in various kinds of institutions, and people have to abide by the dress code when they become part of those institutions. The judge gave the examples of dress codes in court, in golf course, in restaurants etc. The lawyers of the petitioners then tried to divert the matter by saying that the state was denying access to education to those women who want to wear the hijab, and therefore the state should not have the power to prescribe a dress code.
Justice Gupta also asked if girls are to be allowed wear hijab, can they be permitted to come in “middies, minis, skirts” also as per their choice.
Additional Solicitor General, K.M. Nataraj, appearing for the Karnataka govt said that the matter was regarding discipline. When the bench asked how hijab is linked to discipline, he explained that after some students started to arrive in schools and colleges in hijab, others started to wear saffron shawls, and this created a disciplinary issue. He also clarified that the state govt has not prescribed any dress code, it is the individual educational institutions who have prescribed them.
State govt is only saying uniform rule has to be followed as prescribed by the institution, the ASG said. He also added that some institutions are allowing hijab, and the govt is not interfering in that.
On day 2 of the hearing on September 7, the petitioner’s lawyer Devadatt Kamat said that the petitioners are not refusing to wear the uniform, they only want to wear the hijab with that. But justice Hemant Gupta said this argument was taking it to illogical ends, and asked if the right to dress would also include the right to undressing.
Justice Gupta also rejected the argument that the govt order is against secularism, because only one community want to wear religious dress to schools and colleges. Then advocate Kamath gave the examples of nose ring, rudraksha, cross etc, the court said that they can’t be compared with hijab, as while rings are not religious items, AND others remain concealed so it does not violate discipline. On day 2 also the court cited examples of various institutions having dress codes, including the court where the advocates of the petitioners were wearing uniforms.
On day 3 of the hearing, as it became clear that the Supreme Court has taken a strong stand that educational intuitions have the right to prescribe dress codes, and the Karnataka government’s order does not prescribe any specific dress code but only says that the respective dress codes will have to be followed, advocate Kamath brought in the matter of state’s right to prescribe rules regarding hijab.
Advocate Kamath said that wearing hijab is an innocent bonafide practice of religion, but wearing an orange scarf is a belligerent display of religion. He said that some students started to wear orange scarf as retaliation to Muslim girls wearing hijab, but both do not have equal rights, as wearing hijab is a bonafide practice, but wearing orange scarf is not.
He cited Article 25(2) of the constitution which says that the govt is permitted to make laws regarding non-religious activities associated with religious practices. His argument was that as hijab is a religious practice, therefore the state does not have the right to ban it. He also claimed that the state govt put the order under Article 25(2) wrongly.
Kamath also argued that the College Development Committees don’t have the right to prescribe dress codes as they are not the state and are non-state actors.
After Devadatt Kamath, advocate Nizamuddin Pasha argued for the petitioners, who submitted arguments to prove that hijab is part of Essential Religious Practice. Challenging the High Court’s observation that Hijab is not mandatory in Islam, he argued that the High Court has misinterpreted Islamic text. He said that the HC had quoted the Prophet saying “let there be no compulsion in religion” to argue that nothing is mandatory in Islam, and claimed that it was a misunderstanding because the prophet had said this only in regards of conversions, saying that there should not be forced conversion to Islam.
Advocate Pasha said that Hijab is called Khimar in Arabic which is used in Quran. He argued that as per Quranic verse Surah Al Ahzab, Muslim women are required to wear outer garments over their bodies when outside, so that they are not molested. He explained that the hijab is different from Jilbab, also known as Burqa, as Hijab only covers the head and chest, while Jilbab covers the entire body.
The lawyer claimed that the Karnataka High Court wrongly used the description of Jilbab for Hijab. He further said that the HC order contains several misunderstandings of Quran, and claimed Hijab is mandatory in Islam.
Advocate Pasha then tried to compare Hijab with Turban of Sikhs, but justice Gupta rejected that argument saying that things like Turban and Kirpan have been established as mandatory in Sikhism and they are protected by the constitution, while the hijab does not enjoy such protection.
The portioner lawyers also tried to cite judgements and examples from foreign countries like USA, Canada, France, Austria etc, but the bench barred them from citing any such examples, and asked them to remain confined to India only.
