The Supreme Court on Thursday said that wearing a hijab within the street might not offend anyone, however, doing so during a school might raise an issue on what reasonably public order the authorities would want to keep up.
The top court also said it had been improper to create a comparison of the hijab with a turban because 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 didn't consider a contention that the Karnataka HC's March 15 order - which upheld the hijab ban - was supported interpretation of Islam, bordering on blasphemy.
Advocate Nizamuddin Pasha, appearing for petitioners, submitted that just growing hair and wearing a turban is one amongst the 5 K’s of Sikhism, and obeying the word of Allah within the Quran is an element of Tauheed (faith), one among the five pillars of Islam, that the duality of the position vis-e-vis hijab reflected discrimination on the a part of the state authorities.
He said that the hijab won't cause a violation of discipline if worn within 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 crucial for Sikhs.
“That is why we are saying comparison with Sikh might 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 therefore 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 travel that far".
Pasha also submitted that right to wear a hijab is additionally protected by the correct of minorities to conserve their culture provided in Article 29(1), which unlike Article 25 doesn't have any limitations, and a bigger bench will must analyse Article 29 to define its contours.
He also said the prohibition in Article 29(2) against being denied entry into educational institutions travel by the govt. on the premise of faith is clearly violated if a Muslim who believes that hijab is important to her faith is denied entry thereon basis.
Earlier before noon, senior advocate Devadatt Kamath submitted that Article 25, which guaranteed freedom of faith under the Constitution protected innocent real practices like wearing a hijab but not an orange shawl, "a belligerent display of religion".
The bench, however, asked wearing a hijab in street might not offend anyone, however, wearing it in an exceedingly school might raise an issue on what reasonably public order a faculty would want to take care of.
Kamath said one can wear headgear, kara, as a part of his faith, it should not be a core religious practice, but as long because it doesn't affect public order, health or morality, it will be allowed.
"Wearing a namam, yes, wearing a hijab, yes, wearing an orange shawl isn't a factual practice. The argument of the state is that if I wear a hijab, other students will wear an orange shawl. Wearing an orange shawl isn't a real supernatural virtue. it's a belligerent display of faith, that if you wear this, i'll wear this,” he said.
Maintaining that the 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 supreme court judgements on whether the hijab is a vital religious practice and this court should finally settle the problem.