There is no binary like obligatory and non-obligatory in Islam: Salman Khurshid
The Supreme Court today, while responding to an argument that the Karnataka High Court should not have interpreted the Quran for the purpose of deciding the Hijab ban case, said the High Court had no choice but to do so, given that it was argued that wearing the hijab was an essential religious practice (ERP).
Bench of Judges Hemant Gupta and Judge Sudhanshu Dhulia were hearing the case challenging the hijab ban in Karnataka government educational institutions.
The court, after hearing lead counsel Yusuf Muchhala, said one of the claimants argued that the High Court should not have entered into the interpretation of the Quran.
“You went to court and said it was an essential religious practice. What other option does the High Court have than to report it? Now you say the High Court cannot do that.
To this, the lead attorney replied that “it is only judicial wisdom not to touch on an area in which they have no expertise. The High Court, when meeting the ERP, should have said ‘we can’t look into that’.
During his arguments, Muchhala told the Court that the High Court had wrongly noted that the hijab was only recently worn by students in public schools and colleges.
“No denial of these assertions by the state, so it’s amazing what they say in their pleadings. He added that the petition contains stories and agony of people who were denied entry into institutes because they wore hijab and as a result were denied access to education.
Judge Hemant Gupta replied that “If these were not in the High Court, we cannot take it, but hear the other cases. We can’t hear that on new grounds. Your point is very well understood.
The lawyer said the point of argument was essentially the right to freedom of conscience, privacy and access to education. The rights of Muslim girls to freedom of conscience, privacy and access to education.
He added that “all these are patterns, there must be uniformity otherwise there will be disorder. The courts must protect the fundamental rights of dignity. The doctrine of proportionality will also come into play here. The lawyer said sensitivity should be kept in mind when hearing and ordering in the case.
The applicant lawyer said that cultural and religious diversity can be accommodated… If turban can be allowed, I will not put it under discrimination but tolerance which can be there for hijab too, it will not lead to discord.
The lead solicitor said that according to the High Court, Sections 19(1) and 25 of the Constitution are mutually exclusive.
JJustice Hemant Gupta replied that “the Court speaks only of freedom of conscience and freedom of religion. They are not saying that sections 25 and 19 are mutually exclusive.“
Lawyer Muchhala continued to argue and said that the two rights cannot be mutually exclusive but rather complement each other,
Lawyer Muchhala questioned the bench “What crime are these little girls committing? Put a piece of cloth over their head. As a result, all rights are denied to them. Whoever puts on the hijab should not be looked upon as a caricature, but with dignity.
Citing the Supreme Court judgment in Puttaswamy to argue that the choice of dress, dress or appearance is also part of the right to privacy.
Another prominent lawyer, Salman Khurshid, also presented arguments on behalf of the petitioners. He said, “There is no binary like obligatory and non-obligatory in Islam. What is in the Quran is obligatory and what the Prophet interpreted is also obligatory. This is an essential thing to keep in mind.
The court asked Khurshid if he insisted that wearing the hijab was an essential religious practice, he replied:
“It is a question of religion, of culture, of conscience, of culture, of dignity.
Khurshid then took the bench through verses from the Quran and pictures of burqas, hijabs and jilbabs to explain the difference between them.
He said that the lofty ideas given to the country by this very Court cannot be taken away. If I’m at the Bar, I have to sign up for the dress code. But does that mean I can’t wear anything other than what’s important to my culture or religion?
He also added that Hijab is a screen according to Quran and it is a religion or a culture., Similarly Ghoonghat is considered very essential in UP or North India….