The counsel for the petitioners in the hijab ban row on Monday told the Supreme Court the Karnataka high court did an "objectionable" thing when it tried to "interpret" the Holy Quran and held the headscarf worn by Muslim women was not an essential religious practice.
Citing a previous SC judgment, he insisted courts have an "institutional incapacity" to interpret the Quran.
Senior advocate Y H Muchhala, appearing for one of the petitioners, claimed that multiple rights of Muslim girls were affected by the Karnataka HC ruling.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia was hearing arguments on a batch of pleas challenging the Karnataka high court verdict refusing to lift the ban on hijab in educational institutions of the state, which has set off a major row.
”Whether hijab is an essential part of religion or not is a totally irrelevant part so far as we are concerned. We are really concerned with individual's rights, we are not considering the religious denomination part,” Muchhala said.
”I am asserting my right under Articles 25(1), 19(1) (A) and 21 and on conjoint reading of all -- all my rights of expression, freedom of conscience distinct from religious practice are also being affected, my right to privacy is also being affected and of course the right to have access to education. So, all my rights are being affected," Muchhala said.
Challenging the high court's verdict, the counsel said, "What the high court has done is very very objectionable.”
”Tell us what is objectionable?” the bench asked, after which the counsel referred to a previous judgment of the apex court and said it was submitted that the court cannot and should not embark on the path to interpret the Quran and that is what the high court has done.
”The courts have institutional incapacity to interpret the Quran, your lordships allow me to say that,” he asserted.
The top court, however, said it was the petitioners who had gone to the high court saying the hijab was an essential religious practice.
”Somebody raised this point. What was the option with the high court but to deal with it,” the bench said, adding, “First you assert it as a right, the high court gives its order one way or the other then you say it cannot be done.”
”Actually you are contradicting yourself. You started it by saying whether it is an essential religious practice or not should be referred to a larger bench. Now you say the court cannot go into the question,” the SC bench said.
The lawyer responded, noting his submission was that certain issues relating to the Constitution must be referred to a larger bench.
The Constitution can't operate in vacuum, the bench said.
The counsel said the main thrust of the petitioners' argument before the high court was to assert their right to education by attending educational institutions wearing the prescribed uniform, with hijab in addition to the uniform.
Wearing hijab is included in freedom of speech and expression and it does not in any way threaten public order, decency or morality or is incitement to an offence, he contended.
Muchhala said protection of freedom and dignity are most important and the courts must protect them to avoid disharmony.
”What is the crime these little girls are committing? Putting a piece of cloth on their head? Because of this, all rights are denied to them. One who puts a hijab must not be looked at like a caricature, but with dignity,” he said.
Senior advocate Salman Khurshid, representing some other petitioners, said wearing hijab could be seen as a matter of religion, conscience, culture and dignity.
While showing the court what was burqa, hijab and jilbab, the counsel said these are all cultural practices which need to be respected in our promise to diversity.
When Khurshid handed over a copy of the Quran to the judges for their reference, the bench said with due respect it does not want to keep the holy book and asked the counsel to give them a printout of the relevant portion.
Giving an example of uniform, Khurshid said he will wear the uniform prescribed by the Bar Council of India but it does not mean that he cannot wear something else which is important to his religion and culture.
The Supreme Court said the question in the Karnataka hijab ban matter is whether under Article 25 or 19 of the Constitution, the students have a right to wear a veil while going to school.
While Article 25 relates to freedom of conscience and free profession, practice and propagation of religion, Article 19 deals with freedom of speech and expression and Article 26 deals with freedom to manage religious affairs.
A bench said Article 26 will have no application here as there is no question of religious denomination.
The court's observation came when counsel for one of the petitioners said his case concerned only the individual's right.
The bench said, ”So only thing is whether under Article 25 or 19 you have a right to wear a veil while going to the school. That is the only question." The counsel replied in the affirmative.
Several pleas have been filed in the top court against the March 15 verdict of the high court holding that wearing of hijab is not a part of the essential religious practice which can be protected under Article 25.
The high court had dismissed the pleas filed by a section of Muslim students from the Government Pre-University Girls College in Udupi, seeking permission to wear hijab inside the classroom.
Challenging the February 5 order of the government banning hijab, the petitioners had argued before the high court that wearing the Islamic headscarf was an innocent practice of faith and an essential religious practice, and not a display of religious jingoism.