New Delhi: The Karnataka High Court had misread the translation of Islamic verses of the Quran to hold that the use of hijab was not an essential religious practice but a cultural one, one of the petitioners in the hijab ban case submitted before the Supreme Court Thursday.
Advocate Nizam Pasha, the third counsel to address the court on behalf of the petitioners, faulted the Karnataka High Court for writing in its 15 March verdict that verses of the Quran had lost meaning with time. Such an observation “borders blasphemy”, Pasha told the court.
“For believing Muslims, the Quran is perfect for all the times to come. So, to say the verses have lost meaning with time is bordering on blasphemy,” Pasha argued.
Pasha further argued that even if one were to assume the HC’s view, that hijab was a cultural practice, as correct, it is as much a constitutionally-protected right as wearing a turban in Sikhism.
While the bench of justices Hemant Gupta and Sudhanshu Dhulia, which is hearing a batch of petitions against the Karnataka HC’s 15 March verdict, didn’t make a comment on the first two arguments noted above, it objected to Pasha drawing a parallel between a hijab and turban.
The hijab row broke out in January when the Government PU College in Udupi stopped six students wearing hijabs — a headscarf the petitioners claim Muslim women are mandated to wear — from entering the college premises .
After the six students sat in protest outside their college, students from several other colleges in Udupi began coming to the college with saffron scarves.
As the row escalated, the Karnataka government issued a circular on 5 February banning religious symbols such as hijabs and saffron shawls in educational institutions. The order also said that uniforms must be worn in institutions where such a policy exists.
The students then approached the Karnataka High Court. In their petition, they claim the February order empowered the college development committees (CDC) of government colleges to ban Muslim girls from wearing hijabs on campuses.
On 15 March, the Karnataka High Court ruled that hijab was not an essential part of Islam and that the requirement of a uniform can be categorised as a “reasonable restriction” on the fundamental right to free speech and expression (Article 19(1)(a)).
The court also held that the government’s power to issue an order was not invalid.
Even though the high court order was interim, the petitioners approached the apex court, which issued notice in the case on 29 August.
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‘If the turban’s protected, so is the hijab’
In his arguments Thursday, Pasha contended that if “wearing of a turban is protected, hijab, even if it is regarded as cultural, is [also] protected”.
“If a Sikh has to wear a turban, and he is told not to come to school if he wears one, it is violative,” Pasha submitted.
At this, however, Justice Gupta intervened to say that the comparison may not be appropriate given that “the five Ks of Sikhism (kesh, kara, kangha, kaccha, kirpan) had been held to be mandatory”. Kesh, meaning unshorn hair, is contained within the turban.
“Carrying of kirpan was, in fact, recognised by the Constitution and thus these practices could not be compared,” the judge said.
But Pasha remained firm, telling the court that the Constitution only spoke of kirpan, a short sword or knife, and that the other ‘Ks’ found no mention. But Justice Dhulia said there were judgments that held all five ‘Ks’ essential.
“Please do not make any comparison with Sikhism,” Justice Gupta said later. “These are all practices well established, well-ingrained in the country’s culture. It has been there for hundreds of years.”
At this, Pasha countered by saying that “similarly Islam is also there for 1,400 years and hijab is also present”.
When the court seemed disinclined to entertain this line of argument, Pasha instead went on to highlight the negative impact of a ban on religious practices. He spoke about a survey in France conducted after the country banned “visible religious symbols” — such as hijab and turban — in public schools through a 2004 law.
“The survey showed how Sikh students felt humiliated because they lost their identity after the turban was banned. Similarly, Muslim students there were negatively impacted,” Pasha said.
Earlier, Pasha argued the impugned judgment of the HC had referred to an unrelated verse — which dealt with the conversion from one religion to Islam — to hold that hijab was not mandatory. According to him, the HC relied on the opinion of a translator, but not the actual translation of the verse in the Quran, to rule that hijab was not compulsory.
Pasha claimed the verse was in the context of “jilbab”, not “hijab”. Jilbab covers the whole body and is not compulsory, while hijab covers only the head and chest, and was necessary, he said.
“Therefore, it is on the misreading of this footnote that the HC concludes that wearing of hijab is recommendatory,” Pasha said.
Hijab was declared non-essential religious practice by the HC also since the Quran did not prescribe a penance or penalty for not wearing it, he said.
This, according to Pasha, was again due to a misunderstanding of the religious text.
“There is no temporal punishment for spiritual disobedience,” he argued. “Religion has spiritual implications for an afterlife. There is no prescription in the Quran. Even for violation of namaz and roza, there’s no temporal punishment,” he said.
He further referred to Hadith — a narrative record of sayings or customs of the Prophet Muhammad that is a major source of religious and moral guidance in Islam. “When the Prophet is quoted as saying veil is more important, and when the Quran says ‘follow the Prophet’, nothing more is required to show it is essential,” he argued.
(Edited by Uttara Ramaswamy)
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