Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC

A Full Bench of the Karnataka High Court today continued hearing Advocate General Prabhuling Navadgi on behalf of the State, in the petitions filed by Muslim girl students, who have challenged the action of a government college in denying their entry for wearing a hijab (headscarf). Today is the 8th day of the hearing before the Full Bench.Navadgi told the Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi that petitioners have not shown that wearing hijab is an essential religious practice in Islam and thus, the protection under Article 25 of the Constitution is not available to them.He further argued that wearing hijab does not stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment)."If somebody is to come before lordships seeking a declaration, that we want every women of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating. According to me it is impermissible in this day and age...dignity of the women must be kept in mind," he said.The Bench also heard Senior Advocate R Venkataramani, appearing on behalf of college teachers who are made respondents in a writ petition and Senior Advocate S. Naganand, appearing for govt PU college, its principal and lecturers.Wearing Hijab not essential religious practice: AGAG referred to the case of Dr. M. Ismail Faruqui v. Union of India (Babri Masjid case) the Supreme Court negated the argument that praying in a mosque is an essential practice."The protection under Articles 25 & 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential & integral part of practice of that religion...A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India," it was held therein.He stated that this decision was rendered in face of certain suras in Quran that were mentioned to claim mosque essential to offer prayers. Thus, the AG placed on record of the Court certain Suras of the Holy Quran, translated to English by Syed Yusuf Ali."Syed Yusuf Ali books also contains commentary. I would place it on record of the court. It is not for us to elaborate, I leave it to the court on how it is to be construed...We have not ventured and we have great reverence, respect and prayers when referring to the holy books. Except for the translation we have not done anything," he said.He argued that Sura 24 Verse 31, which the petitioners contended makes a reference to 'Khumur' or a 'headscarf', does not mention hijab.He also referred to Sura 33, Verse 59, which purportedly refers to long gown, not headdress.The AG contended that the source on which the petitioners have relied is a website created by few volunteers and it is not authorized.The Chief Justice then inquired if it is the State's argument that portion of the Quran the petitioners have relied also does not mention about hijab.Justice Dixit also sought a clarification qua the Kerala High Court judgment which held that wearing hijab is an essential religious practice.The AG responded,"In Kerala High Court, what Justice Mustaque has done is, the Arabic version of this speaks of "Khumar", Khumar he says is the dress worn over head. There the reference is to Hadith. The judgment is pre-Shayra Bano and Sabarimala case."Petitioners unable to discharge burden: AGThe AG referred to the case of Mohd. Hanif Quareshi & Others vs The State Of Bihar, where the Supreme Court had considered the issue whether cattle slaughter restrictions interfered with religious practice. It was held therein that:"No affidavit has been filed by any person specially competent to expound the relevant tenets of Islam. 'No reference 'is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow".In this vein, the AG argued that it is for the petitioners to demonstrate beyond doubt as to what is compulsory to be followed. "During the course of hearing court asked petitioners, what is obligatory and what is optional. I feel it is for them to satisfy your lordships."Also Read: Hijab Ban : Karnataka High Court Refuses Interim Relief To Permit Degree College Students To Wear HeadscarvesThe AG further pointed out that it was held in that case that what is optional does not constitute ERP."I read this judgment (Qureshi) to show that it has said reading of Quran has shown that sacrifice of cow on that day is not obligatory. The very fact of an option seems to run counter to an obligatory duty. What is optional is not compulsory; What is not compulsory is not obligatory; What is not obligatory is not essential."AG told the Bench that in France,...

Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC

Mustafa Plumber

Tags