The hearing of the petitions challenging the Karnataka High Court's decision to uphold the ban on hijab in educational institutions in the state has been adjourned to Monday, September 12 by the Supreme Court.
The apex court conducted day three of the hearing in the case which engrossed the nation earlier this year. Advocate Devdutt Kamat made his submissions to the two-judge bench of the apex court on behalf of the petitioners, dissecting the Karnataka High Court's verdict and stating that the three-judge bench of the HC had ventured into "dangerous territory" of separating conscience from religion in its order which was passed in March this year.
Justices Hemant Gupta and Sudhanshu Dhulia heard Kamat's submissions that the government cannot cite the disruption of public order as the basis for banning the hijab. "If I wear head gear and someone gets offended and makes an issue and shouts slogans, police can't say I can't wear it. That will be a hecklers veto. It is on this basis that the ban was imposed. The State can't take the facile ground that public order will be violated. It is your duty to ensure an atmosphere of public order so that I can exercise my rights freely," said Kamat, according to a report by LiveLaw.in.
Kamat was told by Justice Gupta to not "waste time on public order". Gupta added that the question was not whether the ban was violating a fundamental right, but whether hijab is a fundamental right or not.
Kamat said that the state referred to the Education Act of Karnataka, 1983 to say that the Preamble restricted hijab as it violated the dress code. He added that the framers would have thought to put restrictions on a Right under Article 25 of the Constitution that guarantees freedom of conscience and free profession, practice and propagation of religion. "Any restriction on right must be direct and proximate, not indirect and inferential," he added.
He also reiterated his arguments from the case in the Karnataka High Court and said that the College Development Committee, which first banned the hijab for Muslim students in a government Pre-University College in Udupi, Karnataka, does not have the authority to decide on issues of public order or morality under Article 25.
Advocate Nizam Pasha argued on the Islamic directives with reference to the hijab. He mentioned that it needs to be settled whether all religious practices or only essential religious practices are to be protected. He also added that the High Court's conclusions that the hijab was not mandatory came from a misinterpretation of Islamic texts. He argued that the High Court's conclusion that the hijab cannot be an essential religious practice because it does not have any penalty is misguided since religion imposes spiritual implications and not temporal punishments.
Pasha also mentioned the Sikh practice of wearing a turban and said that if Sikhs are not allowed to wear turbans to schools, it would be considered violative. However, to that Justice Gupta said, "Please don't make any comparison with Sikhism. These are all practices well established, well engrained in the culture of the country."
