THE Karnataka Government, on Tuesday, urged the High Court to keep the dignity of women into consideration while adjudicating on the bunch of petitions seeking a declaration that hijab is an essential part of Islam. It argued that the petitioners seeking religious sanction by way of a judicial declaration to wear the hijab can tantamount to compulsion even for those Muslim women who do not wear it. This, the government argued, would lower the dignity of those Muslim women who do not wish to wear the hijab.
The submissions were made by Advocate General [AG] Prabhuling K. Navadgi before a bench comprising the Chief Justice [CJ] Ritu Raj Awasthi, and Justices Krishna Dixit and J.M. Khazi.
Navadgi argued that it was for the petitioners to demonstrate that wearing hijab was obligatory under Islam. He submitted that in the absence of evidence to the effect that hijab is a mandatory practice, the Court could not grant a declaration holding it to be an obligatory practice for Muslim women. He referred to a decision of the Supreme Court in Mohd. Hanif Quareshi & Ors. vs. The State Of Bihar (1958), in which the court rejected the argument that the sacrifice of a cow was an essential part of Islam. The Supreme Court had found that the materials before it to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam, extremely meagre. Citing the same proposition, the AG argued that the petitioners have failed to bring on record adequate evidence to show hijab is an essential part of the religion.
Navadgi argued that to attract Article 25 [Freedom of conscience and free profession, practice and propagation of religion] of the Constitution, the religious practice sought to be protected ought to be compulsorily followed. It requires an element of compulsion. He submitted that hijab is optional and what is optional is not obligatory, and thus not an essential part of the religion to attract Article 25.
He cited the example of the ban on hijab in France to argue that a prohibition on hijab has not affected the religion (Islam). Justice Dixit observed that the ban depends upon the constitutional policy and setup of each country. However, CJ Awasthi noted that Islam is the same for all, whether they are in India or in another country.
Navadgi relied upon the Quranic translation by a Muslim scholar Abdullah Yusuf Ali to argue that hijab as such is not mentioned in Quran. He pointed to the Court that Ali’s book, with the consent of parties, had been relied on by the Supreme Court in Shayara Bano vs. Union of India(2017)(popularly known as the ‘triple talaq case’).
The AG also dealt with the petitioners’ argument that the right to wear hijab is part of Article 19(1)(a), that is, right to freedom of expression. First, he clarified that there is no restriction on the hijab in the colleges. The only restriction to wearing the hijab is in classrooms, and that too during class hours, Navadgi told the High Court.
He argued that restriction on wearing hijab in the classroom, even if it is claimed under Article 19(1)(a), can be regulated by law under Article 19(2), which provides for reasonable restrictions on freedom of speech and expression. He said the state government already has the law to regulate it. He referred to Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula Etc.,) Rules which, according to the AG, imposes upon students a reasonable restriction of wearing a particular headgear.
Navadgi submitted that petitioners’ tracing their right to wear hijab under Articles 19(1)(a) and at the same time under Article 25 (freedom of religion) is mutually destructive, for in the former case there is an element of choice, and in the latter, there is a compulsion, and thus the same cannot go along.
Citing from the Supreme Court’s judgment in the Sabarimala case(2018) and Puttaswamy (2017), the AG argued that the practice of wearing a hijab is against the constitutional morality and dignity of an individual. He sought to submit that if the court were to hold Hijab as essential religious practice, then for the Muslim women who do not wear it, it might amount to lowering their dignity. He further argued that it is a compulsion of an attire which the petitioners want to impose on every believer of Islam, which, Navadgi argued, is impermissible in this day and age and as interpreted by the Supreme Court. At this juncture, Justice Dixit noted if in Hindu marriage, we hold tying of mangalsutra is essential, it does not mean all Hindus in the country should compulsorily wear mangalsutra. We declare the legal position and leave it there, he said.
During the hearing, the bench observed that the issues before it can also have similarities with the reference to a nine-judge bench of the Supreme Court arising out of the Sabarimala issue. CJ Awasthi asked for a copy of the reference order from the AG.
Before concluding his submission, AG Navadgi clarified to the Court that its order prescribing uniform is not meant for unaided private educational institutions and that the government does not intend to interfere with their rights. This came in response to a petition alleging imposition of the uniform even on such educational institutions.
Senior Advocate R. Venkatramani, appearing for respondent teachers, argued that people should have all the freedom to practice religious practices but when they enter a public space, that too a qualified space such as a school, it has its own dimensions. He argued that ‘public order’ has to be interpreted in the context of the school. It cannot be seen in a generic sense or abstract sense, he said. He added that school is not a place to propagate religious practices.