The Supreme Court on Thursday said that wearing a hijab in the street may not offend anyone, however, doing so in a school might raise a question as to what kind of public order the authorities would want to maintain.
The top court also said it was improper to make a comparison of the hijab with a turban as the Sikh religion has been ingrained in Indian culture and its validity has been upheld by the five-judge bench earlier.
Hearing arguments against the hijab ban on Karnataka's Pre University Colleges, a bench of Justices Hemant Gupta and Sudhanshu Dhulia did not agree with a contention that the Karnataka HC's March 15 order - which upheld the hijab ban - was based on interpretation of Islam, bordering on blasphemy.
Advocate Nizamuddin Pasha, appearing for petitioners, submitted that just growing hair and wearing a turban is one of the 5 K’s of Sikhism, and obeying the word of Allah in the Quran is part of Tauheed (faith), one of the five pillars of Islam, so the duality of the position vis-e-vis hijab reflected discrimination on the part of the state authorities.
He said that the hijab will not cause a violation of discipline if worn in the colour of the uniform.
The bench, however, said 5 Ks of Sikh has been held to be mandatory and a five-judge bench of this court held that wearing a turban and kirpan is essential for Sikhs.
“That is why we are saying comparison with Sikh may not be proper," the bench said, adding Sikhism has been ingrained in Indian culture.
On this, Pasha said Islam has been there for 1,400 years and the hijab has been present since then.
He also claimed the High Court's judgement giving his own interpretation on wearing hijab bordered on blasphemy. The bench asked him "not to go that far".
Pasha also submitted that right to wear a hijab is also protected by the right of minorities to conserve their culture provided in Article 29(1), which unlike Article 25 does not have any limitations, and a larger bench will have to analyse Article 29 to define its contours.
He also said the prohibition in Article 29(2) against being denied entry into educational institutions run by the government on the basis of religion is clearly violated if a Muslim who believes that hijab is essential to her faith is denied entry on that basis.
Earlier before noon, senior advocate Devadatt Kamath submitted that Article 25, which guaranteed freedom of religion under the Constitution protected innocent bona fide practices like wearing a hijab but not an orange shawl, "a belligerent display of religion".
The bench, however, asked wearing a hijab in street may not offend anyone, however, wearing it in a school might raise a question as to what kind of public order a school would want to maintain.
Kamath said one can wear headgear, kara, as part of his religious belief, it may not be a core religious practice, but as long as it does not affect public order, health or morality, it can be allowed.
"Wearing a namam, yes, wearing a hijab, yes, wearing an orange shawl is not a bona fide practice. The argument of the state is that if I wear a hijab, other students will wear an orange shawl. Wearing an orange shawl is not a genuine religious belief. It is a belligerent display of religion, that if you wear this, I will wear this,” he said.
Maintaining that the High Court has gone into a dangerous territory of separating conscience from religion, he submitted that there was a divergence of views among Karnataka, Kerala and Madras High Court judgements on whether the hijab is an essential religious practice and this court has to finally settle the issue.