The Karnataka High Court should not have gone into the question of essential religious practice while deciding on the ban on wearing hijab in educational institutions in the state, Justice Sudhanshu Dhulia of the Supreme Court observed on Tuesday while hearing petitions challenging the verdict, reported Live Law.

“They [the High Court] have relied on a term paper of a student, and they have not gone to the original text [of the Quran],” Dhulia added. “Other side [the petitioners] is giving another commentary. Who will decide which commentary is right?”

In its verdict upholding the hijab ban, the Karnataka High Court had cited an essay titled “Veiled Women: Hijab, Religion, and Cultural Practice – 2013”. The essay written by Sara Slininger, a History student at the time, was the High Court’s basis to hold that hijab was at best a cultural practice.

A Supreme Court bench of Justices Dhulia and Hemant Gupta and Dhulia is hearing a batch of petitions challenging the High Court order.

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Hijab ban is a question of individual rights, not essential religious practice, petitioners tell SC

At Tuesday’s hearing, Solicitor General Tushar Mehta, appearing for the Karnataka government, agreed that the High Court could have avoided looking into whether wearing hijab was an essential religious practice in Islam.

However, he said that it was the petitioners who had argued that hijab was an essential practice.

Mehta said the courts have developed tests to ascertain if a religious practice is essential and protection can be granted only to those that meet the threshold.

The judges then said that the petitioners have cited verses from the Quran to suggest that hijab is an essential religious practice. To this, the solicitor general replied that the mere mention of hijabs in the Quran do not make the practice essential.

“They have to show it is so compelling,” he added. “We have figures, who have not been excommunicated for not following. It can be a permissible practice or at best an ideal practice but not an essential practice”

Justice Dhulia said that the question of essential religious practice only comes when someone approached the court raising the matter. The judge said the court will have to decide on the basis of the Constitution.

‘Whose rights are violated by women wearing hijab’

Senior Advocate Dushyant Dave, appearing for the petitioners, argued that public order was the only ground for banning hijabs under reasonable restrictions in Article 19 that deals with freedom of speech and expression.

To support his argument, Dave said that in the Superintendent versus Ram Manohar Lohia verdict passed in 1960, the Supreme Court had held that public order is synonymous with public peace, safety and tranquility.

“So, this ground is not available to the state,” he said. “Nobody’s peace is violated, safety is violated and tranquility is violated. How can the High Court say rights are violated? The women want to wear hijab. Whose rights are violated? Other students’ rights?”

Dave also questioned was the need for the state government to impose the ban on headscarves 75 years after independence.

“The circular came like a bolt from the blue,” he told the court. “There have been a series of facts which show that minorities are being attacked in Karnataka. Even if a Muslim wants to sell outside a temple, he will be thrown out.”

The case

The state government ban came 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.

On March 15, the Karnataka High Court upheld the state government’s ban on hijabs in schools and colleges and held that headscarves were not essential to Islam.

Days after the High Court upheld the ban, a group of students moved the Supreme Court contending that they would miss their examinations due to the ban. However, NV Ramana, who was the chief justice at the time, refused an urgent hearing in March, saying that the hijab ban had nothing to do with examinations.