New Delhi: The petitioners in the hijab ban case Monday faulted the Karnataka High Court’s 15 March judgment for opining that the wearing of the headscarf is not an essential practice of Islam, and said that “judicial wisdom” would have been to not touch a field in which the court “has no expertise.”

The Supreme Court was hearing a batch of petitions challenging the Karnataka High Court’s upholding of a hijab ban imposed by a pre-university government college in Udupi, as well as the Karnataka government’s 5 February order that extended its support to the restriction.

According to senior advocate Yusuf Muchhala, appearing for one of the petitioners in the apex court, the Karnataka HC had done something “highly objectionable” by using one interpretation of the Quran against another to give a finding on the essentiality of the hijab. 

“Human dignity is a constitutionally-protected facet. My scriptures say I have to observe modesty (to maintain dignity), and wearing of the headscarf may be a personal marker in this regard. Scholars and interpreters may disagree, but, as a lay woman, if this [wearing hijab] is right, then I will follow it. It is not the job of the courts to say follow one [interpreter] and don’t follow the other,” Muchhala submitted before a bench of justices Hemant Gupta and Sudhanshu Dhulia.

Monday was the fourth day of hearing in this matter. The top court is seized of a set of appeals against the Karnataka HC judgment that found no infirmity in the state government’s order that virtually banned the wearing of hijab by Muslim girls studying in pre-university colleges.

The state order was cited by the Udupi college to restrain Muslim girls studying there from coming to the institution wearing hijabs. Those who did not adhere to the uniform rules were barred from attending classes and writing exams as well. 

Though the diktat led to widespread protests in the area, the government had refused to rescind the order, resulting in students taking legal recourse.

The debate around reasonable restriction

Petitions were filed in the HC, claiming that the wearing of the hijab was an essential religious practice, one protected under the Constitution. There can be restrictions on constitutional rights, however, they should be reasonable and proportionate to the object sought to be achieved, which was not the case in the present controversy, the petitioners had asserted. 

But, in its interim order, the HC held that wearing the hijab was not an essential religious practice among Muslims and the government order was, therefore, a reasonable restriction imposed on the students. 

Now, attacking this finding of the HC, the petitioners in the case argued Monday that the court should not have embarked upon the exercise of interpreting the Quran. Last week, the counsel for one of the petitioners had said the high court’s observation of Quran’s verses had lost its relevance with time and bordered on “blasphemy”.

Muchhala said courts in India are not equipped to “judge the Quran”. 

The senior counsel further said, “Even an average Indian Muslim reads Arabic as it is without the meaning.”

When the court told Muchhala that the petitioners had gone to court with the question around essential religious practice, Muchhala responded saying that the court should have stayed away from it. “When the high court encountered the question, it should have said hands off, we cannot look into that.”

Later, senior advocate Salman Khurshid, arguing for one of the petitioners, contended that all cultural practices need to be respected in terms of “our commitment to diversity”. Right to choose one’s apparel is a facet of dignity, liberty, and privacy, he argued. 

It was not the petitioners’ contention that uniforms must be dispensed with, he said, adding that the petitioners were asking to wear something in addition to the uniform.

Khurshid stressed the importance of preserving India’s composite culture, which, he argued, was a part of the Fundamental Duties chapter in the Constitution. To buttress this point, he mentioned how those who visit the gurdwara immediately cover their heads irrespective of whichever religion they belong to.

Similarly, he added, one has to cover their head while entering a mosque, and this practice of covering the head was unique to Indian tradition and culture. “There is a debate in Islam on whether you need to cover your head to enter a mosque. In other countries, you do not need to, but here you have to,” Khurshid said.

He added that even qualified public spaces such as schools or pre-university government colleges are duty-bound to preserve the composite culture. This was essential to protect India’s diversity, he asserted.

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