The Supreme Court on Thursday observed that there is no comparison between kirpan and turban of Sikhs and the hijab. A five-judge bench of the apex court, hearing a bunch of petitions challenging the Karnataka High Court order upholding a ban on hijab in educational institutions, held that wearing turban and kirpan is allowed for Sikhs.
The observation came after advocate Nizam Pasha, appearing for one of the petitioners, tried to draw similarities between the kirpan and turban with the hijab.
Justice Hemant Gupta said that comparison with Sikhs may not be proper as carrying of the kirpan is recognized by the Constitution. “So don’t compare practices,” the court remarked. Justice Gupta further said that there are statutory requirements on turbans and these are all practices well established in the culture of the country.
Pasha said that the hijab is a part of the religious practice of Muslim girls and also asked if girls could be stopped from coming to school wearing hijab. He further argued that even Sikh students wear turbans.
Pasha stressed that cultural practices should be protected.
In his argument, Pasha referred to the Shirur Matt case and said, “The Attorney General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.” Advocate Pasha added that the above argument was not accepted by the Court in Shirur Mutt case. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
When the Court asked to read from the Quran to establish if hijab was an essential practice in Islam, Pasha quoted from the famous Babri judgment forbidding interpretation of scriptures. “Our court is founded on Constitutional order and we must reject the attempt to lead the Court into interpretation of religious doctrines,” said Pasha. To buttress his argument, Pasha also quoted from in Shayra Bano (triple talaq) case. He said that the Court did not interpret scriptures. “It was only the judgment of Justice Kurian Joseph which proceeded on scriptures. The majority judgment went by the statute,” he observed.
During the hearing, Devadatt Kamat, appearing for another petitioner, apprised the Court of divergent views taken by Karnataka, Kerala and Madras High Courts on whether the hijab is an essential religious practice. Madras and Kerala courts held that hijab was an essential religious practice but Karnataka High Court differed.
Kamat said that every religious practice is not essential, but it is not that the State goes on restricting it. “Karnataka government order on the prescription of uniform in educational institutes suffers from non-application of mind,” Kamat added.
In his argument against the ban on hijab by the state government and Karnataka High court upholding the same, Kamat also brought into discussion Article 25 and the question of public order.
“Whether uniformity in public space is a ground to restrict Article 25? Whether a Muslim girl wearing a head scarf is an affront to discipline? Article 25 does not recognize this ground of uniformity or discipline,” Kamat said.
“High Court fell into the constitutional error of first going to decide if hijab is an essential practice, without deciding if GO can be a restriction,” Kamat argued. At this point Justice Sudhanshu Dhulia asked Kamat, “According to you, essential religious practice is not to be seen?”
“I say at the second stage. First, see if there is a valid constitutional restriction, then only the question of essential religious practice arises,” countered Kamat.