The appellants against the Karnataka hijab ban Monday argued in the Supreme Court that the High Court should not have ventured into interpreting the Quran as it lacked expertise. But they were told by the top court that it was them who had raised the issue of essential religious practices first, which may have left the Karnataka High Court with no option but to do the same.
“You are the ones who went to the court saying that this is an essential religious practice, isn’t it? Somebody raised this point… What was the option for the High Court but to deal with it?” Justice Sudhanshu Dhulia, sharing a bench with Justice Hemant Gupta, asked Senior Advocate Yusuf Muchhala.
The remarks came after Muchhala, appearing for one of the petitioners, submitted: “There are well-settled rules of interpreting the Quran… with which the courts are not well acquainted” and therefore must have not ventured to do so.
“Keepig in view such handicaps to deal with holy scriptures, judicial prudence requires that courts and also common citizens should restrain from interpreting the same,” he told the bench.
Justice Dhulia responded: “At least I am not understanding this point at all… First you assert it as a right. The High Court gives a decision one way or the other and then you say it cannot be done.”
Muchhala agreed that the point had been raised. “Somebody may have done it erroneously or by over enthusiasm… the court must have said you asked this question but I can’t answer.”
“But this is the main plank of the argument” before the HC, Justice Dhulia said.
Muchala said the matter raises issues of importance that require interpretation of the Constitution and urged the SC to consider referring it to a Constitution bench.
He produced before the court documents which “show how much right of education of Muslim girls is affected because of the cultural differences and because their cutlural and religious rights are not respected”.
Pointing out that freedom of conscience is distinct from freedom of religion, he said: “All my rights of expression, freedom of conscience and also freedom of expression under Article 19(1)(a)… privacy and right to access to education are affected” by the HC order.
“All my rights are affected on the ground that there must be uniformity and if there is no uniformity, it will cause disorder,” he contended, adding: “What is important is protection of freedom and dignity.”
Muchhala said the High Court had found that there is scope for an argument that Article 25(1) and 19(1)(a) are mutually exclusive and said “that’s completely contrary to the principle laid down by the Constitution bench” in Puttaswamy case (Aadhaar case).
The senior counsel argued: “How I dress is my decisional autonomy”
“What is the crime these little girls have committed? The only crime is putting up a little piece of cloth on their head for which all their rights are denied”.
He said: “Women feel they got empowered because of this (wearing hijab). We cannot enforce our views on them”.
Senior Advocate Salman Khursheed, appearing for a petitioner, said the Quran has the words of God, that came through the Prophet, and are mandatory.
The bench then asked him if he wanted the court to interpret the verses while Muchhala said it should not.
To a query from the bench if he considered it an essential religious practice, Khursheed said “it can be seen as religion, can be seen as conscience, can be seen as culture, can be seen as individual dignity and privacy”.
The senior counsel pointed out that the HC had referred to Fundamental Duty under Article 51A(h) ( promotion of scientific temper) but ignored 51A(f) which speaks of preserving “composite culture”. He added that the idea of unity in diversity comes from this preservation of composite culture.
Khursheed said while one wears the prescribed uniform, the question is if they cannot wear anything more which is important for their culture.
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He pointed out that “ghoonghat” is considered essential for women in parts of Rajasthan and Uttar Pradesh, when they go out. The senior counsel also referred to the example of visitors to Gurudwara covering their head with at least a handkerchief before entering.
The arguments remained inconclusive and will resume on September 14.