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New Delhi: It is “not very fair” to compare the ban on hijab with the practices in Sikhism, the Supreme Court observed on Thursday, September 8, while hearing a batch of petitions challenging the Karnataka high court’s decision to uphold a ban on hijab.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia observed this after an advocate, appearing for one of the petitioners in the case, gave an example of Sikhism and turban.
“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 while dismissing the argument of advocate Nizam Pasha as irrelevant.
According to LiveLaw, advocate Pasha said, “Justice Gupta mentioned in the morning that wearing of turban is cultural. It is protected. Wearing of hijab, even if regarded as cultural, is protected. 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…I went to an all boys school and in my class, there were several Sikh boys who wore turban of the same colour of uniform. It has been established that it will not cause violation of discipline.”
Justice Gupta further said, “Please don’t make any comparison with Sikhism. These are all practices well-established, well-engrained in the culture of the country.”
To this, Pasha responded as saying, “Islam is also there for 1,400 years and the hijab is also present.”
The top court referred to Article 25 of the Constitution and said it provides for carrying of Kirpan by Sikhs. (Article 25 of the Constitution deals with freedom of conscience and free profession, practice and propagation of religion.)
Advocate Pasha, however, said Article 25 mentions only Kirpan and not the other Ks.
Separately, senior advocate Devadatt Kamat, who also appeared for one of the petitioners, told the bench that the state of Karnataka has said if the students would come in a headscarf, other people will get offended but this cannot be the reason for banning it.
Kamat argued that Article 25 has three restrictions – public order, morality and health.
“Wearing a headscarf is a part of religious belief apart from it being a part of (Articles) 19 and 21 rights,” he said.
Kamat argued that every religious practice or religious observance is not essential to the religion but that does not mean that the State will keep on restricting it because it is not essential.
“As long as I do not violate public order, I do not fall foul of morality and I do not affect the health of others, I am entitled,” he said.
Giving an example that one of the senior advocates wears a ‘namam’ (a divine mark put on forehead), Kamat said it may not be an integral part of religion of the Hindu faith.
“How does it harm discipline in the court? Does it harm public order?” he asked.
The bench observed there is a particular uniform for the lawyers to appear in court. It said wearing hijab on the street does not affect anybody.
“But once you are talking about a school building, school premises, then the question is what kind of a public order the school wants to be maintained there,” it said.
Kamat said public order is the responsibility of the State and the school has nothing to do with it.
He asked, “In our constitutional scheme, is the heckler’s veto permitted?” (Heckler’s veto is suppression of speech by the government when necessary to prevent possible violent reactions).
The senior advocate said it is the duty of the State to create an atmosphere where people can exercise their rights in accordance with Article 25.
“If I wear a headscarf, whose fundamental rights am I violating?” he said.
The bench observed it is not a question of violating other’s fundamental rights.
“The question is what kind of fundamental right do you have which you want to exercise,” it observed.
Kamat said the state’s argument is that if it permits the wearing of a headscarf, which the petitioners regard as a part of their faith, some other students will wear an orange shawl.
“Wearing of an orange shawl, I do not think it is an innocent display of faith. It is a belligerent display of religious jingoism,” he said, adding, “Article 25 only protects an innocent display of faith.”
In the earlier hearings of the matter, Justice Gupta had pointed out “a chunni was also not comparable to a hijab.”
“Chunni is different. It can’t be compared to hijab. Chunni is used to be worn on shoulders…People don’t cover their heads in presence of elders in Punjab. That’s not the culture in Punjab,” the same bench had responded to senior advocate Sanjay Hegde.
Several pleas have been filed in the top court against the March 15 verdict of the high court holding that wearing of hijab is not a part of essential religious practice which can be protected under Article 25 of the Constitution.
The high court had dismissed the pleas filed by a section of Muslim students from the Government Pre-University Girls College in Udupi, seeking permission to wear hijab inside the classroom.
Challenging the February 5 order of the government, the petitioners had argued before the high court that wearing the Islamic headscarf was an innocent practice of faith and an essential religious practice and not a display of religious jingoism.
The case will be heard next on September 12.
(With PTI inputs)