Karnataka AG PK Navadgi on Hijab issue said that wearing Hijab is a religious practice. It is possible, as stated in the Qur’an, that not every worldly activity associated with religion may be a necessary religious practice. Justice Gupta said that, his contention is that whatever is said in the Quran is the word of God and is mandatory.
AG of Karnataka said that we are not experts in Quran, but every word of Quran can be religious but not mandatory. Qureshi’s decision on cow slaughter, in which cow slaughter on Bakrid is not a necessary practice. Just because something is mentioned in the Quran, it cannot be necessary.
Justice Gupta said, what has been said in the Qureshi judgment that cow slaughter is not mandatory as an alternative to goat has been given. The Muslim side has said that five aspects of Islam are essential. These will come under “Tawheed” so wearing it is part of the obligation of Muslim women. So we would like to know to what extent Tawhid is necessary. The AG said, it is not mandatory. We have a large number of mothers and sisters who do not wear hijab. There are countries like France or Turkey where hijab is banned. A woman who does not wear a hijab, becomes no less Muslim.
Justice Gupta said, I know a judge of Lahore High Court in Pakistan, he used to come to India. He has a wife and two daughters. I have never seen those little girls wearing hijab, at least in India. There are not many Muslim families in Punjab. When I went to UP or Patna, I have interacted with Muslim families and have not seen women wearing hijab.
AG Navadgi said that, on triple talaq case in Shayra Bano, the SC had said that there are many religious groups who do different types of worship or practice religions, rituals, rites etc. Therefore, it would be difficult to formulate a single definition of religion which would be considered applicable to all religions. The Constitution Bench of the Supreme Court in the Ismail Farooqui case had held that protection under Articles 25 and 26 is accompanied by religious practice which is an integral and essential part of religion. A custom may be a religious practice but is not an essential and integral part of the practice of that religion. Only the compulsory practice is protected by the Constitution. The educational institution is not a place to profess, propagate any particular religion or caste and on the contrary students have to wear uniform. For this noble purpose the students are required to wear the uniform and clothes prescribed by the institute or the concerned authority.
AG Navadgi said that polygamy is not a compulsory practice in Islam. In that case a Muslim man with more than one wife had challenged the restriction that persons of more than one marriage could not contest local elections. In Ismail Farooqui case it has been said that offering prayers in a mosque is not a necessary or integral practice. Practice should be fundamental to religion and from time immemorial.
Justice Gupta said that this cannot be right, the Muslim side has also cited. AG Navadgi said, there is no argument that it is fundamental to religion. The second criterion is that by not following religion, the practice of changing the nature of religion will change. For example, many women do not wear hijab. Many countries like France or Turkey have banned the hijab. It was argued that if the practice is not followed, you will be accountable to God in the afterlife. This is a very common test. The punishment should be determined.
Navadgi said that wearing hijab can be religious, is it necessary for religion? The High Court has said no. Justice Dhulia said, then what is essentially religious for religion? Navadgi said – Whatever is protected under Article 25 of the Constitution is necessary for religion.
Navadgi said that the rule of dress code has been found under Rule 11, which gives the right to determine the dress to an institution. Therefore, should Rule 11 be interpreted under Article 19? If a student wears the wrong dress and the teacher sends him back from school, can the student go to court to say that freedom of expression has been banned?
Justice Dhulia said that some schools may not have uniform, so how can you stop them? Then it is called equality and uniformity. Navadgi said – Where there is no uniform, there is no ban on hijab or anyone. Even hijab is not banned in school transport or school premises. These restrictions are only in the classrooms. All government schools have one.dress prescribed by the government. Karnataka provides free uniforms to students from class 1st to 10th.
Justice Gupta said that if someone wears a headscarf, is it affecting the right to equality? Navadgi said that if the school says that we do not ban it, then we cannot stop it.