The Karnataka government said that women who do not wear the hijab to their liking, or that women in countries such as Turkey and France have banned the wearing of the hijab, do not become less Islamic simply because they do not wear it. The Supreme Court on Wednesday explained why the practice would not qualify as an essential religious practice (ERP).
“Today we have a large number of sisters and mothers belonging to the Islamic faith who do not wear the hijab as a matter of choice. We have countries like France and Turkey that have banned the wearing of the hijab. But in both these situations, when If a woman does not wear a hijab, she does not become less Islamic,” Karnataka Advocate General Prabhuling Navadgi told a bench of Justices Hemant Gupta and Justice Sudhanshu Dhulia.
The bench is hearing an appeal against the Karnataka High Court order dismissing petitions by some Muslim girl students of pre-university colleges in Udupi seeking the right to wear hijab in classes.
Navadgi said that these “may be some tests to understand whether it (wearing the hijab) is so mandatory, if it is so fundamental without which you are going to be a non-Muslim”.
“When we enter an educational institution, both the student and the administrator are governed by the Education Act. It is a complete Act in itself and the question of violation of Fundamental Rights does not arise.
He argued that “the right to wear dress in an educational institution in defiance of school rules is not a fundamental right. The right to wear hijab in school is also not a fundamental right.”
On the details of the ban, he said, “We do not ban wearing hijab outside (classrooms). We don’t stop them from coming to school without hijab even in school or college transport. There are no restrictions on school premises either. The restriction is only inside the classroom”.
Referring to the Shayara Bano case, in which the Supreme Court organized the practice of triple talaq Unconstitutional, he submitted that the mention in the Qur’an can make something religious, but whether it is necessary has to be tested using tests already prescribed by the court.
Navadgi said one of the arguments of the Muslim appellants was that those who do not obey the commandments of the Quran will be held accountable later. “It is very common to say so. The obligation should be provided in the text itself, ”he said.
Asked by the bench as to why the state had not urged the High Court not to venture into deciding whether it was an essential religious practice (ERP), Navadgi said at one point of time the state’s counsel was to interpret the Quran. But when the petitioners claimed that it was an ERP, “we relied only on the judgments of the Supreme Court to say that these tests are not satisfactory”.
Opposing the contention that wearing hijab is a fundamental right of expression, Navadgi submitted that the appellants have not put on record any material to establish the claim.
The court said the argument is that if a girl can wear a hijab in the mall, then how does she lose her right when she steps into the school premises.
Navadgi responded that “there is nothing like absolute liberty”, and that “every freedom may be restricted and controlled in the manner known under the Constitution”.
Elaborating on the plight of the school management when the controversy erupted, she said, “When it was said, it was strongly emphasized – that we want to wear the hijab as a religious symbol. And then another section of students protested. What do I do as a school principal? My primary concern is running the school; To ensure that there is no enmity, to bring the children together… not to decide whether it is ERP or not”.