Hijab Ban: SC says Sikhism has Indian roots, not like Islam, so no comparison over practices

New Delhi: The Supreme Court bench that is hearing the Hijab ban case has found it unfair to compare the practices of Sikhism with the practices of Islam, saying the practices of Sikhism are well ingrained in the Indian culture and not like Islam.

Advocate Nizam Pasha, who appeared representing one of the students who opposed the hijab ban, argued that the protection extended to wearing turbans to Sikhs should be given to hijab as a best cultural practice.

Responding to this argument, a bench of Justices Hemant Gupta and Sudhanshu Dhulia said that It is not very fair to compare the rights or the practices of Sikhism. The five Ks are well established," the bench observed. "Don't compare these practices because they have been recognised for over 100 years."

Observing that arguments were advanced about Kara and turban, the bench said the practices in Sikhism are well established and well engrained in the culture of the country. During the arguments, Pasha said the Karnataka High Court had referred to certain verses of the Holy Quran as well as some commentaries. He said the Holy Quran, as it stands, is perfect for all times to come and to say that verses of the Quran have become obsolete, is "bordering on blasphemy".

Senior advocate Devadatt Kamat, who appeared for one of the petitioners, told the bench that the state of Karnataka has said if the students would come in a head scarf, other people will get offended but this cannot be the reason for banning it. Kamat argued that Article 25 has three restrictions — public order, morality and health. "Wearing a head scarf is a part of the religious belief apart from it being a part of (Articles) 19 and 21," he said.

Kamat argued that every religious practice or religious observance is not essential to the religion but that does not mean that the state will keep on restricting it because it is not essential. "As long as I do not violate public order, I do not fall foul of morality and I do not affect the health of others, I am entitled," he said.

Giving an example that one of the senior advocates wears a 'namam' (a mark put on the forehead), Kamat said it may not be an integral part of the religion of the Hindu faith. "How does it harm discipline in the court? Does it harm public order?" he asked.

The bench observed there is a particular uniform for the lawyers to appear in court. Justice Gupta said people in Rajasthan wear Pagdi as a matter of routine because of the climatic condition and Gujarat also people wear it.

On the arguments about public order, the bench said this issue may arise when one is on the street. The bench observed that wearing a hijab on the street does not affect anybody. "But once you are talking about a school building, school premises, then the question is what kind of a public order the school want to be maintained there," it said.

Kamat argued that public order is the responsibility of the state and the school has nothing to do with it. He asked, "In our constitutional scheme, is heckler's veto permitted?" (Heckler's veto is suppression of speech by the government when necessary to prevent possible violent reactions).

The senior advocate said it is the duty of the state to create an atmosphere where people can exercise their rights in accordance with Article 25. "If I wear a head scarf, whose fundamental rights am I violating?" he said.

The bench observed it is not a question of violating others' fundamental rights. "The question is what kind of fundamental right do you have which you want to exercise," it observed during the arguments, which would continue on Monday, September 12.

Kamat said the state's argument is that if it will permit the wearing of a head scarf, which the petitioners regard as a part of their faith, some other students will wear an orange shawl. "Wearing of an orange shawl, I do not think it is an innocent display of faith. It is a belligerent display of religious jingoism," he said, adding, "Article 25 only protects an innocent display of faith".

Kamat had earlier referred to the state government's order of February 5, 2022, by which it had banned wearing clothes that "disturb equality, integrity, and public order" in schools and colleges, which several students had challenged in the High Court. Several pleas have been filed in the Supreme Court against the March 15 verdict of the High Court.

With PTI Input