'Comparison With Sikh Turban Improper': Supreme Court to Lawyer in Hijab Case

"Five-judge bench...held that wearing turban and kirpan is essential for Sikhs," Justice Gupta remarked.

The Supreme Court, while hearing a batch of petitions challenging the hijab ban in Karnataka schools and colleges, orally remarked on Thursday, 8 September, that comparing the use of the hijab by Muslims to the use of the turban by Sikhs would not be proper.

The court's remark came in response to Advocate Nizam Pasha's submission that "if a Sikh has to wear a turban, and he is told not to come to school if he wears a turban, it is violative."

But Justice Hemant Gupta responded by saying:

"There are requirements on turbans. Five-judge bench of this court held that wearing a turban and kirpan is essential for Sikhs. That is why we are saying comparison with Sikh may not be proper."

Advocate Pasha, however, argued that "just like the five Ks (Kesh, Kara, Kanga, Kaccha, Kirpan) for Sikhs is the five pillars of Islam and that is the exact position for us."

But to that, Justice Gupta said: "Please do not compare with Sikhism...It has been completely ingrained in Indian culture." Pasha replied that Islam, too, has been "there for 1,400 years and the Hijab is also present."

Prior to Pasha's arguments, Senior Advocate Devdutt Kamat argued that banning the hijab in educational institutions violated Articles 19, 21, and 25 of the Constitution. He also said:

"Every religious practice may not be essential, but that does not mean that State can keep restricting it as long as it does not fall foul of public order, morality or health."

He also asked if the 'Heckler's Veto' could be allowed and wondered whose fundamental rights were being violated by a Muslim woman donning a headscarf.

The matter is being heard by a bench of Justices Hemant Gupta and Sudhanshu Dhulia.

Hijab Is One of the Pillars of Islam, Argues Advocate Pasha

Advocate Pasha, in his arguments, challenged the Karnataka High Court judgment on the grounds that it relies on incorrect verses.

Terming the high court's reliance on a verse attributed to the Prophet, which says "let there be no compulsion in religion," as a "gross misunderstanding of the verse," Pasha said:

"It is on conversion. Conversion cannot be forced and no one can be converted to Islam if they don't want to. That was the idea behind 'let there be no compulsion'."

On being asked by the court to show which verse says the hijab is necessary, Pasha drew the court's attention to a verse that says "women should draw veil over their bosom, and how even for men lowering the gaze is important."

"The word used in Quran for Hijab is Khimar. In India we call it Hijab. Like in Arabic prayer is called Salah and in India we call it Namaaz. It is one of the pillars of Islam. Khimar is defined in oxford dictionary as a piece of cloth covering head."

Advocate Nizam Pasha

He also shared a quote from Sarah Al Ahzab that advises believing women to "cast their outer garments over their persons (when abroad)...that is most convenient, that they should be known (as such) and not molested."

Further, he said that certain observations of the high court border on blasphemy – "The last verse of Quran meant that religion of Islam was perfected by God for all times to come. High Court saying that verse of Quran is not relevant now anymore borders on blasphemy."

But to this, Justice Dhulia replied: "Don't go so far."

'Can Heckler's Veto Be Allowed?' Asks Sr Adv Kamat

Senior Advocate Devdutt Kamat in his arguments on Thursday discussed Article 25 (freedom of conscience and free profession, practice and propagation of religion) and Heckler's Veto, among other things.

Responding to Justice Dhulia's observation that he could bring up Article 25 if he was arguing that wearing the hijab was an essential religious practice, but he had previously said that he would not be getting into that, Kamat said:

"Every religious practice may not be essential, but that does not mean that State can keep restricting it as long as it does not fall foul of public order, morality or health."

Further, Kamat argued:

"If I wear a headscarf, whose fundamental rights am I violating?"

But to this, Justice Gupta replied:

"It is not the question of violating other's fundamental rights, the question is whether you have the fundamental right."

Kamat also said that if a school refused admission to hijab-clad women on grounds of public order, it would be a legitimisation of the Heckler's Veto.

"School can't take the ground of public order. If I wear a headgear and tomorrow someone gets offended…and shouts slogans, police can't say I can't wear it. That will be hecklers veto."

He also noted that the Advocate General had recently said to the court that the government order was issued after some students had demanded to wear saffron shawls (in protest against the hijab). He then asked:

"Can hecklers veto be allowed? You (State) can't take a facile ground that public order will be violated. It is your duty to ensure an atmosphere of public order so that I can exercise my rights freely."

Further, Kamat noted:

"State is pitching on the Education Act. The question which arises for your lordships is which is this great law which provides for social reform. None."

Previously

Previously, on Wednesday, responding to the contention raised by the petitioner's counsel that the right to dress has been recognised by the top court itself in a 2014 judgment as a fundamental right under Article 19(1)(a) of the Constitution, the top court asked:

"You can't take it to illogical ends. Right to dress will include right to undress also?"

In March this year, the Karnataka High Court upheld the state government's ban on Muslim students wearing hijabs in schools and colleges.

The female students had protested the hijab ban, first imposed by individual institutions and then through a government order, and had said that it was a component of their essential religious practice.

They also said that their freedom to dress that way was constitutionally validated as freedom of conscience and that such bans on their religious attire were hostile discrimination.

The matter has been listed for further hearing at the Supreme Court on Monday, 12 September.

(With inputs from LiveLaw and Bar and Bench.)