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'Not Quran Interpreters' to 'Right to Undress': 7 Oral Remarks by SC During Hijab Ban Hearings

The bench of Justices Hemant Gupta and Sudhanshu Dhulia have made headline-grabbing remarks in the course of the last nine hearings, the outcome of which will affect thousands of girl students in Karnataka.

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New Delhi: Hearings at the Supreme Court of pleas challenging the Karnataka high court’s decision to uphold the ban on hijab at educational institutions in the state have seen a number of comments by the two judges occupying the benches.

The hearings, the outcome of which will affect thousands of girl students in the state, have been widely reported on print and digital media. The bench of Justices Hemant Gupta and Sudhanshu Dhulia have made headline-grabbing remarks in the course of the last nine hearings.

Solicitor general Tushar Mehta, Karnataka’s Advocate General Prabhuling K. Navadgi and Additional Solicitor General (ASG) K.M. Nataraj have argued on behalf of the state. Among others, Kapil Sibal, Colin Gonsalves, Devadatt Kamat, Dushyant Dave and Salman Khurshid have presented views of the petitioners.

From notes on the role of the hijab in diversifying Indian thought to how the ‘right to dress’ could perhaps be construed as the ‘right to undress,’ the following are a selection of some of the noteworthy lines that the Supreme Court bench has said during the hearings.

Essential religious practice

Justice Sudhanshu Dhulia orally remarked on Tuesday, September 20, that the Karnataka high court should not have gone into the question of essential religious practice while dealing with the case.

Justice Dhulia also observed that the high court relied on a term paper of a student in the judgment.

“High court should not have gone into it (essential religious practice test). They have relied on a term paper of a student, and they have not gone to the original text [the Quran]. Other side [petitioner] is giving another commentary. Who will decide which commentary is right?” he asked.

‘Great diversity’

Justice Sudhanshu Dhulia, on Wednesday, September 21, asked how students will prepare for the great diversity of the country when none is allowed in their classrooms.

According to a report on The Hindu, Justice Dhulia also said that the hijab should be seen as an eye-opener, a window to prepare students for the diversity of the country in culture, dress, and cuisine.

‘Not interpreters of Quran’

The Supreme Court said on September 15 that it is not the “interpreter” of the Holy Quran and it has been argued before it in the Karnataka hijab ban matter that courts are not equipped to interpret religious scriptures.

“The one way is to interpret the Quran…. We are not interpreters of the Quran. We cannot do it and that is the argument raised also that the courts are not equipped to interpret religious scriptures,” the bench said.

On the same day, the bench also said, “The high court might have said anything, but now we are taking an independent view in the appeals.”

‘Right to undress also?’

On September 7,  Justice Hemant Gupta, after hearing submissions by senior advocate Devadatt Kamat, sought to know whether the freedom of expression could be stretched to the freedom to dress as a person pleases.

Kamat, according to LiveLaw, had said that the petitioner, a hijab-wearing student, agreed that there would be “reasonable restrictions” on this right and was not opposed to wearing the uniform but simply sought to wear the hijab along with it.

At that point, Justice Gupta said, “You can’t take it to illogical ends. Right to dress will include right to undress also?”

Kamat responded that “nobody is undressing in a school.”

In a later hearing, advocate Gonsalves appeared critical of the Supreme Court’s comment when he said: “The ‘dress-undress’ argument is unfortunate because Muslim girls are in fact undressed if they are told to take off the hijab by the security guard.”

‘Midis, mini-skirts’

On September 5, Justice Hemant Gupta asked if girls could be permitted to go to educational institutions “in middies, minis, skirts” as per their choice.

During the arguments, the bench observed that if the Karnataka Education Act does not permit prescribing dress code, then the question would be whether the Act prohibits dress code.

“Can the students come in minis, midis, whatever they want?” the bench asked.

The court said, “You may have a religious right to practise whatever you want to practise. But can you practise and take that right to a school which has uniform as a part of dress you have to wear? That will be the question.”

Pagdi and comparisons with Sikh practices

In quite a few hearings, the bench, especially Justice Gupta, has stressed that the “pagdi” headgear cannot be compared to the hijab and that the two were not the same.

“The comparison with Sikhs may not be proper. The 5 Ks of Sikh have been held to be mandatory. There are judgments. Carrying of Kirpan is recognised by the Constitution. So don’t compare practices…,” Justice Gupta said.

Separately, Justice Gupta also said the pagdi is a non-religious item and was worn in royal states. He said: “My grandfather used to wear it while practicing law. Don’t equate it with religion…”

‘Overdose of hearing’

The Supreme Court on Wednesday, September 21, asked the counsel appearing for the petitioners to wrap up their rebuttal arguments within an hour today, September 22, saying “we are losing our patience”.

“We will give one hour time to all of you. You finish that. Now, it is an overdose of hearing,” a bench of Justices Hemant Gupta and Sudhanshu Dhulia told senior advocate Huzefa Ahmadi.

“We are losing our patience,” it said.

“I must say, your lordships have heard us with inexhaustible patience,” Ahmadi said.

“Do you think we have any other choice?” the bench asked.

Note: This article will be updated as the hearings continue.