If hijab gets religious sanction, women will be obligated to wear it: AG tells HC

Day eight of the hearing of the hijab row case resumed in the Karnataka High Court on Tuesday (February 22).

Advocate general Prabhuling Navadgi, who had argued on Monday that hijab is not an essential religious practice, continued his arguments on behalf of the government in the same vein at first.

The AG told the court that the petitioner’s claim is to make the hijab compulsory. The entire claim of the petitioner is to make compulsion, which goes against the ethos of Constitution. Wearing of the hijab can’t be made compulsory, it should be left to the choice of concerned women, he said.

“A large number of petitioners who represent women organisations, I want to tell them that dignity of the women must be kept in mind,” he said. Human dignity involves liberty, which involves choice to wear or not to wear.

If hijab becomes religious sanction, women will be obligated to wear it, said AG. “The difficulty in this case is as soon as it becomes a religious sanction the woman concerned becomes obligated to wear that particular dress. The element of choice goes away,” said AG Navadgi.

Further, the AG said that there is no discrimination based on religion here.

“As far as private unaided minority institutions are concerned, we are not interfering with the uniform code and have left it to the institutions to decide,” he said. Meanwhile, senior advocate R Venkataramani, appearing on behalf of teachers who have been made respondents in a writ petition, argued that state should not enter into matters of what constitutes religion, whatever is essential and not essential. State will come in when it collides with public order, morality or health.”

After hearing the submission made by the senior advocate S Naganand, who was appearing on behalf of government PU college, the court adjourned for the day. The hijab row hearing will resume tomorrow.

Also read: Hijab is not an essential religious practice, Karnataka govt tells HC

The AG today also stressed that the practice may be religious but not essential and integral to religion. He referred to the Ismail Faruqui judgment which said that “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”.

Further, quoting from the same judgment that the protection provided 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 and integral part of practice of that religion”, he reiterated.

Moreover, he pointed out that there was no restriction on wearing hijab on campus, adding that the restriction is only inside the classroom during class hours.

The AG began his arguments today stating that the right to wear hijab under Article 19 right can be restricted under Article 19 (2), adding that in the present case, Rule 11 places a reasonable restriction inside the institutions and it is subject to institutional discipline.

On Monday, the advocate general stated that hijab is not an essential religious practice and said religious instructions should be kept outside the educational institutions. Citing the triple talaq case, he said a religious practice claimed to be essential must be mandatory and not optional.

Quoting the Sabiramala case, advocate Navadgi argued that if a practice was optional, it cannot be said to be ‘essential’ to a religion. He added that it had to be shown that wearing the hijab was essential to Islam.

The hijab controversy was triggered after some girls from a government PU college in Udupi in January sought permission to wear it inside classrooms. They started a protest against college authorities, which soon snowballed into a statewide issue.

Several petitions were filed in the Karnataka High Court on January 31 in which Muslim students sought the right to wear Hijabs in classrooms under Article 14, 19 and 25 of the Constitution of India. The court heard it for the first time on February 8. The high court, in its interim order pending consideration of all such petitions, last week restrained all the students from wearing saffron shawls, scarves, hijab and any religious flag within the classroom.