No Fundamental Right To Wear Hijab In Classroom Defying Uniform Rule : Karnataka AG Tells Supreme Court [Day 9]

The Supreme Court today continued hearing the petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim students in educational institutions. Today was the ninth day of hearing by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. The Petitioners' side had concluded its arguments yesterday and the Bench is now hearing State counsels.Karnataka Advocate General Prabhuling Navadgi argued that not every religious practice is protected under Article 25 of the Constitution. He referred to the Supreme Court judgments declaring that triple talaq and cow slaughter are not essential religious practises in Islam, to argue that Petitioners must show that hijab is an essential religious practice, to claim protection under Article 25. He submitted that if it is held that there is no fundamental right to wear hijab under Article 25, what remains before the Court is the reasonableness of the restriction of uniform in school. AG said that the State only intends to inculcate discipline in students by regulating uniform, and any restrictive effect on rights under Article 19 is "incidental" and it cannot be a ground to invalidate the law. "We have not prohibited hijab outside, there is no restriction on wearing in school transport. There is no restriction even in school campus. It is only in classroom," he added. So far as right to privacy under Article 21 is concerned, the AG submitted that Right to privacy is a "developing jurisprudence" and even as per the Puttaswamy judgment, it cannot be exercised in all zones. The AG also denied the allegations that State has targeted a particular community. He said that to the contrary, State runs several welfare programs for minority groups. "The action of State in issuing the circular must be viewed from the language used in it. All it says is follow Rule 11 (of Karnataka Education Rules). So, it cannot be impugned on other grounds. In the absence of challenge of Rule 11, the school code will prevail…It is a case of school versus students. Not Govt vs Students… relationship between school and students is quasi-parental."Read arguments by Solicitor General Tushar Mehta here. COURTROOM EXCHANGENot everything said in Quran is mandatory; Test of ERP necessary: Karnataka AG At the outset today, Justice Gupta asked that even if it is presumed that wearing hijab is not an Essential Religious Practice, then what kind of practice would it be? He pointed that as per the Petitioner, everything stated in Quran is the word of God and is mandatory. The AG responded that there is no pleading it is fundamental to religion. Further, even assuming that wearing of hijab is a religious practice ordained in Quran, however, not every mundane activity related to religion can be an essential religious practice. "If we are to accept whatever said in Quran to be essential, it will defeat the tests of essentiality. One test is whether it will change the nature of religion. Safest test. If every aspect of Quran, with great reverence, may be religious, but not essential. On plain reading of text, it (hijab) is not mandatory. We have large number of mothers and sisters who do not wear hijab. We have countries like France or Turkey where hijab is prohibited. Woman not wearing hijab does not become less Muslim." Justice Gupta agreed that there is a fair share of Muslim women who do not wear hijab. "I know someone in Pakistan,a judge of Lahore High Court, he used to visit India, he has a wife and two daughters, I have never seen those little girls wearing hijab at least in India…In Punjab, there are not many Muslim families. When I visited UP or Patna, I have interacted with Muslim families and have seen women not wearing hijab," the Judge shared from his experiences. The AG then reiterated that everything said in Quran may not be essential. He cited the Mohd Hanifa Quresh case which held that cow slaughter on Bakrid is not an essential practice. Justice Gupta pointed that cow slaughter was held to be not mandatory because there is an option given for goat slaughter. The AG next cited Shayra Bano case, where the concept of triple talaq was tested and was held to be a non-essential practice. "Every sura contained in Quran need not be obligatory," he said. He also referred to the Khursheed Ahmad Khan case where a Muslim, man having more than one wife, had challenged the restriction on polygamous persons to contest local elections. The Supreme Court, while upholding the restriction, had held that polygamy is not an essential practice in Islam. "The unanimity, the judicial trend seems to be, even while interpreting Islamic text, unless it is shown to be obligatory, you can't get the protection under Article 25," the AG said. He then referred to Ismail Farooqi case, which challenged acquisition of Babri Masjid land, where it was held that offering ...

No Fundamental Right To Wear Hijab In Classroom Defying Uniform Rule : Karnataka AG Tells Supreme Court [Day 9]

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