The Supreme Court continued to hear a batch of petitions against the Karnataka High Court’s order to ban the wearing of hijab by Muslim girls in educational institutions for the ninth day on Wednesday, 21 September.
The petitions are being heard by Justices Hemant Gupta and Sudhanshu Dhulia. On being asked by Justice Gupta if wearing the hijab is an essential religious practice, the state counsel for Karnataka, Advocate General (AG) Prabhuling Navadgi, said that a woman not donning the hijab does not become "less Muslim."
While the petitioners, being represented by senior advocate Dushyant Dave, had concluded their arguments on Tuesday, the Bench is now hearing the arguments from the State Counsels.
The AG argued that not every religious practice is protected under Article 25 of the Indian Constitution, and asserted that the petitioners must show that wearing the hijab is a religious practice essential to Islam.
He referred to previous judgments of the top court which had declared the triple talaq and the cow slaughter as practices which are not essential in Islam.
The AG claimed that the State only intends to discipline students by regulating their uniform and that there is no prohibition on wearing the hijab outside. “There is no restriction on wearing it in school transport. There is no restriction even in school campus. It is only in classroom," he added.
‘Not Everything Mentioned in the Quran Is Mandatory’
The AG, on being asked by Justice Gupta what kind of practice would wearing the hijab be if it was presumed to be non-essential, said that not every "mundane activity" related to religion can be an essential religious practice.
"On a plain reading of the text, it (hijab) is not mandatory. We have large number of mothers and sisters who do not wear hijab. We have countries like France or Turkey where the hijab is prohibited. Woman not wearing hijab does not become less Muslim."Prabhuling Navadgi, Karnataka Advocate General (AG)
On Justice Dhulia’s oral remark, in the court on Tuesday, that the Karnataka High Court should not have delved into the question of essential religious practices, AG Navadgi said that the petitioners had themselves approached the court saying that it is an essential tenet.
The AG added that Article 25 of the Constitution protects essential religious activities without which the religion cannot survive.
"If left alone, everything that stems out of religion will get protection under Article 25 and it will lead to a situation which is extremely difficult."Prabhuling Navadgi, Karnataka Advocate General (AG)
Intention Not To Curb Freedom of Speech but To Bring Discipline
The AG said that the Karnataka Education Act is intended to administer educational institutions and its objective is to bring in discipline, and incidentally, if there is a violation of Article 19 (fundamental right to freedom of speech and expression), the Act cannot be invalidated.
“If in a class room a student does not wear uniform and the teacher asks him to go back, can he come to Court and say there is no public order or national security ground to impose restrictions under 19(2)?”Prabhuling Navadgi, Karnataka Advocate General (AG)
Right to Privacy in Exchange for Right to Education?
The petitioners had argued that the state cannot enter into a barter system with its citizens asking them to surrender their right to privacy in exchange for their right to education.
The AG responded to this by asking if the right to wear a dress as part of the right to privacy can be exercised everywhere?
"You have the right to dress, but it’s not absolute in all places… There cannot be a general right to wear dress. It varies from case to case… Your fundamental right is circumscribed by regulations…"Prabhuling Navadgi, Karnataka Advocate General (AG)
(With inputs from LiveLaw.)
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