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The Karnataka government on Monday told the high court that the petitioners in the ‘hijab’ case were not only seeking permission to wear the headscarf but also wanted a declaration that it becomes part of a religious sanction to bind on everyone who followed Islam.
The government also reiterated Hijab is not an essential religious practice of Islam.
"This is a not a case where the petitioners alone have come before the court. They are, in fact, seeking a declaration of a particular dress format to become part of a religious sanction so as to bind everyone who follows Islamic religion. That is the seriousness of the claim," state advocate general Prabhuling Navadgi told the full bench of the high court.
The bench comprising Karnataka Chief Justice Ritu Raj Awasthi, Justice J M Khazi and Justice Krishna S Dixit was constituted to hear the case against the ‘hijab’ ban.
The ‘hijab’ row had led to tension in educational institutions where some girls sought permission to wear it inside class-rooms while some Hindu students pushed to sport saffron scarves as a counter.
Arguing further, the AG said every woman who follows Islamic faith is required to wear the ‘hijab’ as per the religious sanction, is the claim made by the petitioners.
"I am nobody to criticise and nobody to say anything but I can only say with a lot of responsibility that when a case of such kind where you not only want to bind yourself, the petitioners, you want to bind everybody, you ought to show more circumspection and discretion seeking declaration, particularly before a constitutional court," the AG submitted.
According to him, the averments made by the petitioners were absolutely without any material.
"The petitioners have not placed any material whatsoever. It is zero material which has been placed before the court," he contended.
The AG reiterated that ‘hijab’ is not an essential religious practice and said religious instructions should be kept outside the educational institutions.
"This is our stand that ‘hijab’ is not an essential religious practice. There was a statement by Dr B R Ambedkar in the Constituent Assembly where he said 'let us keep the religious instructions outside educational institutions'," Navadgi told the court.
According to the AG, only the essential religious practice gets protection under the Article 25, which guarantees the citizens to practice the faith of their choice. He also referred to "reforms in the religion" as part of the Article 25.
As soon as the proceedings began, CJ Awasthi said certain clarifications were required related to the ‘hijab’.
"You have argued the (February 5) government order is innocuous and the state government has not banned ‘hijab’ and not put any restrictions on it. The GO says that the students should wear the prescribed uniform. What is your stand -- whether ‘hijab’ can be permitted or not in the educational institutions?" the chief justice asked.
In reply, Navadgi said if the institutions allow it, then the government would possibly take a decision as and when the issue arises.
As the petitioners claimed that ‘hijab’ is an essential religious practice, the AG said religious practices should be fundamental in nature, which if not followed, the religion will change.
"It is that not the every activity associated with religion which can be characterised as essential religious practice, which includes dress and food," the AG argued.
Explaining further, he said these essential religious practices should precede at the birth of the religion itself and the foundation of the religion must be based on that.
"It is not that the practice should evolve after the religion comes. Essential religious practice should be part of the core belief, which is the cornerstone of the religion," Navadgi said.
Further he said the essential religious practice should be binding in nature.
"If it is optional then it is not essential. If wearing of something is optional and if somebody does not wear and it is still permitted, then it is optional and not binding. The practice must be so compulsive that if you disobey you cease to be part of that religion," the AG argued.
On January 1, six girl students of a college in Udupi attended a press conference held by Campus Front of India in the coastal town protesting against the college authorities denying them entry into the classroom by wearing the ‘hijab’.
This was four days after they requested the principal permission to wear ‘hijab’ in classes, which was not allowed. Till then, students used to wear it to the campus and entered the classroom after removing the scarves, the college principal Rudre Gowda had said.
"The institution did not have any rule on ‘hijab’-wearing as such and since no one used to wear it to the classroom in the last 35 years. The students who came with the demand had the backing of outside forces," Gowda had said.