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Synopsis

Today marked the 9th day of hearing on the hijab issue. A Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia was hearing the matter which came before the court after Karnataka High Court upheld the decision of the Karnataka Government. The government disallowed wearing hijabs in pre-university institutions and ruled that it is not an ‘Essential Religious Practice’ (ERP) of Islam. This ruling has been vehemently debated upon in the last few days, while the other party cited reasons and rationale on the validity. 

Karnataka AG Prabhuling Navadgi, ASG KM Nataraj, Senior Advocate R Venkataramini, Senior Advocate Mohana, Senior Advocate Dama Seshadri Naidu, appeared before the Court today. 

In the initial line of arguments AG Prabhuling Navadgi submitted that the reason why ERP is heavily debated upon before the Court is because ERP was raised by the petitioners before the High Court, and thus the Court decided on it. 

When the Top Court asked, that if not ERP, then what will the hijab be? To that, AG Prabhuling Navadgi stated that the test should be whether taking it (hijab as a practice) away will defeat the purpose, as the SG stipulated.

Turkey and France was relied on, to put forth that even after a ban on the hijab, Islam is still flourishing in the countries, and not wearing a hijab does not make a woman any less of a Muslim. To this, the Bench cited a Pakistani Judge and his wife and daughters as an example. 

Judgments were read out with an aim to establish hijab as not an obligatory practice. Hanafi Qureshi, Javed, Shayara Bano, Ismail Farooqui were referred to.

AG submitted, 'What is essentially religious, that is every activity-like performing pooja, is not a secular activity, but it is religious, But what is protected under Article 25 is that it is essential to the religion so that when doing away with it, the religion will not survive’. 

On the question of ‘no uniform at all’ raised by the Court, AG submitted that uniform puts everyone at level playing field, regardless of economic background. The Constitution of India under Article 51 says, “Rise above your religious transcendents for unity’. While saying that he narrated the incident that happened in Udupi, and later spread across. 

While ASG KM Nataraj’s arguments revolved around the Right to Equality, that the uniform prescribes. And further read judgments with an aim to establish that no right is absolute and without reasonable restrictions. And in this case the restriction being reasonable, was valid under the eyes of law. He further stated that, ‘when at a public place, where public comes together, certain restrictions have to be abided by, in the national interest’.

On religious practice as a fundamental right he indicated towards 'hawan' as practiced by Hindus, and any claim to hawan as a fundamental right would not entitle him to do it at the India Gate. And if done, wouldn't the Courts interfere, he asked.

Senior Advocate R Venkataramini, appeared on behalf of a teacher, where his main line of argument was that the practice of hijab, creates a wall that segregates, and thus is a distraction. The Court then asked him, that as a teacher shouldn’t it be his prerogative to set that as example for students to witness diversity, which is even more in the world outside the schools. The Top Court asked, "Once you are out of school, there is more diversity. Religion, culture, cuisines, climate. The outside worlds is more diverse, you can actually take that as an opportunity, just saying'. To that the Senior Advocate submitted, that there has to be a line that is to be drawn on assumption of identity. 

Senior Advocate Mohana representing professors/teachers vehemently contended that ‘We have been seeing with a coloured vision of religion but why can't we see it from the education point of view’, and asked the Court to see what is the right that is being obstructed by prescribing uniform in a peculiar place life school. Further, substantiated on the point of coexistence of fundamental rights of individuals. 

Senior Advocate Naidu, placed an instance that people have picked up from the scriptures, where it is believed that ‘snakes drink milk’.

The matter is to continue tomorrow.

Case Title: Aishat Shifa vs State of Karnataka