The question of essential religious practice does not arise in the hijab ban case since the matter concerns individual rights, Senior Advocate Yusuf Muchhala, appearing for one of the petitioners, told the Supreme Court on Monday, reported Live Law.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia is hearing a batch of petitions challenging a Karnataka High Court order that had, in March, upheld the state government’s ban on wearing hijab in educational institutions.
The High Court had held that wearing of hijab was not an essential religious practice in Islam and so it is not protected under Article 25 (freedom to practice and propagate religion) of the Constitution.
At Monday’s hearing, Muchhala argued that the High Court should not have looked into the essential religious practice aspect in the case and interpreted the Quran, as the question was related to an individual’s fundamental right.
“Constitution clearly provides that Court should not lay down religion for people to follow, court should not interpret religious scriptures,” the senior advocate told the court. “That is what the High Court has done. There are well-settled rules of interpreting Quran, with which the Courts are not equipped with.”
However, Justice Dhulia pointed out that that it was the petitioners who had raised the question of essential religious practice before the High Court.
“What option does the High Court have?” Dhulia said. “[The] High Court gives a decision one way or other and you say it cannot be done.” the judge said.
To this, Muchhala said: “Somebody must have done [raised the question of essential religious practice] erroneously in enthusiasm. But the Court should know its limits. At that very moment, the court should have said hands off, that we cannot decide whether it was essential religious practice or not.”
The senior advocate argued that Article 25 of the Constitution deals with rights of individuals and the question of essential religious practice would only be applicable if the government makes a law under the Article.
He referred to the Puttaswamy judgement that had held that the choice of appearance are aspects of privacy.
“It is my preference, whether to wear hijab,” Mucchala said. “My Quran says observe modesty. And to observe that modesty, I must have this personal marker. I need not say how much of my religion I am following. I may express a part of my religion, I may choose not to express another part.”
Citing the Puttaswamy verdict, Mucchala also said the validity of the government’s order should not be seen on the basis of its objective but its impact.
“Here, the state says the objective is to promote positive secularism,” he said. “But what is the impact? The object might be noble, but the effect has to be seen. Merely for wearing a piece of cloth over head, education is denied. Wearing a turban is not objected. If you tolerate that, you are tolerating diversity.”
Senior Advocate Salman Khurshid, appearing for a group of petitioners, argued that problems might arise for turbans too.
“Ghoonghat [a form of head covering] is considered very essential for women in parts of Rajasthan and Uttar Pradesh, when they go out,” he said. “When we visited Gurudwara, we immediately covered our head, with a handkerchief at least. One of my clients is a Sikh lady, some of them have started wearing turbans and issue may arise for them too.”
Khurshid said that he does not want uniforms to be completely done away with at educational institutions but was seeking permission to wear something in addition to the uniform.
Hijab ban case
On March 15, the Karnataka High Court had upheld the state government’s ban on hijabs in schools and colleges and held that headscarves were not essential to Islam.
A controversy had erupted after, in December and January, a group of Muslim students of the Government Women’s Pre-University College in Udupi city were not allowed to attend classes for being dressed in hijab. The students staged a protest, and similar demonstrations were held in other parts of Karnataka.
Hindu students and mobs of men protested against Muslim women wearing hijabs to educational institutes. At some colleges, Muslim students were heckled, while in another case, some men climbed up a flagpole to plant a saffron flag and broke into classrooms.
On February 5, the Karnataka government passed an order banning clothes that “disturb equality, integrity and public order”. The students then moved the High Court against the ban.
Days after the High Court upheld the ban, a group of students had moved the Supreme Court contending that they would miss their exams due to the ban. However, Ramana refused an urgent hearing in March, saying that the hijab ban had nothing to do with exams.