Hijab Row: Comparison with Sikh turban improper, says SC
"Five-judge bench of this court held that wearing turban and kirpan is essential for Sikhs.
New Delhi: The Supreme Court on Thursday said that comparisons with turbans worn by Sikhs to use of Hijab by Muslim women will not be proper.
The apex court’s observation came while hearing a batch of appeals filed before it by various appellants challenging the Karnataka High Court’s verdict upholding the ban on wearing Hijab in educational institutions.
“Five-judge bench of this court held that wearing turban and kirpan is essential for Sikhs. So, comparisons with turbans worn by Sikhs will be improper as 5Ks of Sikh has been held to be mandatory,” Justice Hemant Gupta, leading the bench of the Supreme Court said.
The Supreme Court observed this, after hearing from the lawyer, Nizamuddin Pasha, appearing for one of the petitioners. Unlike France, Sikh boys here wear turban to school and it did not interfere with the discipline of the school.
Justice Gupta, asked Pasha that please do not compare Hijab with Sikhism, as it (Sikhism) has been completely ingrained in Indian culture.
Senior advocate, Devdutt Kamat, appearing for another petitioner, said that the State can make a law to regulate secular activities. Right to education act is a social welfare legislation and then they say hijab can be prohibited.
Kamat said that the preamble of Karnataka Education Act, said that any restriction on right must be direct and proximate, not indirect or inferential.
This can never be a constitutional scheme. Where is this that Hijab is lowering dignity?, Kamat questioned the decision of ban on wearing Hijab.
The arguments and submissions of both the lawyers — Kamat and Pasha — were completed today and the Supreme Court would start hearing fresh arguments from other lawyers, including senior advocate, Salman Khurshid on September 12, Monday, the next date of hearing in the case.
Kamat said that the restriction on public order must be real and proximate and not far fetched. “Is there a restriction on wearing headscarf under law. There are none,” Kamat said.
He went on to say that the (Karnataka) Government Order suffers from a complete non-application of mind and that the (State) High Court has supplemented reason to the order.
Kamat said that the state delegated its power to a non-state actor, the College Development Committee, under the Government order, which is not permissible.
Lawyer Pasha said that the verse which shows no one can be compelled to convert has been used to hold Hijab is not mandatory in this case.
“When a believing girl says that she wants to wear the hijab as its more important to her than the whole world, and then giving the woman a choice between education and hijab it is like depriving her of a choice,” Pasha said.
He questioned that when hijab is a part of religion of a girl, then can the girl be stopped from coming to school.
A full Bench of the Karnataka High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice J M Khazi, in their judgement on March 15, this year, held that wearing of hijab by women was not an essential religious practice of Islam.
The High Court of Karnataka’s three-judge bench, had passed the judgment on March 15, and dismissed the petitions filed by a group of Muslim girl students against PU government college for denying them entry while wearing Hijab.
The High Court bench led by Chief Justice Rituraj Awasthi dismissed the petition stating that the practice of hijab is not an essential practice under Islam and thus does not fall within the ambit of Article 25 of the Constitution of India.
The High court had also held that prescription of school uniform is only a reasonable restriction which is constitutionally permissible which the students cannot object to and stated that the government had the power to issue such notification and that no case was made out against the government notification.