Supreme Court’s comment: Hijab cannot be compared with Sikhs’ turban and kirpan

Supreme Court: The Supreme Court heard on September 8, 2022 the petitions challenging the decision of the Karnataka High Court in the Hijab case. The Supreme Court in one of its observations has said that the Sikh Dastar (turban) and Kirpan cannot be compared to the Hijab. During the hearing, Justice Hemant Gupta said that the five-judge constitution bench has already decided that the turban and the kirpan are an essential part of the Sikh religion, both of which are linked to the identity of the Sikhs. Justice Hemant Gupta said that according to the 500-year history of Sikhism and the Indian Constitution, it is a well-known fact that five kakkars are essential for Sikhs. In such a situation, it is not right to compare the wearing of hijab in educational institutions with the religious symbols of Sikhs. The hearing of the Hijab case will continue on September 12. Salman Khurshid will present the arguments of the petitioners on that day.

A bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia made the remarks after hearing the arguments of advocate Nizam Pasha appearing for the petitioners. Advocate Nizam Pasha, who appeared for the petitioners challenging the Karnataka High Court’s decision in the Supreme Court, argued that like the five pillars of Sikhism, Islam also has five basic pillars, namely Hajj, Namaz, Roza, Zakat and Tawheed. He said that hijab has also been a part of these 5 pillars of Islam. Pasha said that if a Sikh is not allowed to come to school wearing a turban, it is a violation of the constitution. "I went to an all-boys school, in my class there were many Sikh boys who wore the same color turban. It has been established that this will not constitute a breach of discipline." Nizam Pasha tried to give examples of countries like France and Austria. On these arguments, Justice Hemant Gupta said that we do not want to be like France or Austria. We are Indians and want to live in India.

Sikhism is linked to country’s culture: SC

Presiding over Supreme Court bench Justice Hemant Gupta said, don’t compare yourself with Sikhs. The customs of Sikhism are well-entrenched in the country’s culture. In response, Pasha argued that we also have to say that the hijab has also been a part of Islamic tradition for 1400 years. In such a situation, the conclusion of the Karnataka High Court is wrong. He cited parts of the Karnataka High Court judgment which held that hijab is a cultural practice. Regarding this, Pasha said that although hijab is a cultural practice, it has been preserved in the same way that turban adornment has been preserved for Sikhs. Justice Hemant Gupta dismissed petitioners’ counsel Nizam Pasha’s argument as irrelevant.

Constitutionally  no reasonable ban on hijab: Kamat

Advocate Devdutt Kamat appeared on behalf of the petitioners before Nizam Pasha and presented his arguments before the Supreme Court. Kamat said that there can be reasonable restrictions on fundamental rights, but this is possible only if it is against law and order, morality or health. Wearing hijab for girls here is neither against law and order nor against morality and health. In such a situation, according to the constitution, the government’s order to ban hijab is not valid. He said that every religious tradition is not an essential part of any religion but it does not mean that the government should ban it. The government has this right only if it is against tradition, law and order or morality. During the hearing, Devdutt Kamat argued that I like Janeu, senior lawyer K. Parasaran too but is it in any way a violation of court discipline?

Supreme Court said- Hijab cannot be compared with court dress

After hearing the arguments of Devdutt Kamat, the apex court in its remarks said, You cannot compare the dress worn in the court with the school dress. Lawyer Rajeev Dhawan had mentioned the turban but the turban is not necessarily a religious dress. Due to the weather, people in Rajasthan also often wear turbans. Justice Hemant Gupta said that although there is no problem with anyone wearing hijab on the street, the question is about wearing hijab inside the school. The question is what kind of system the school administration wants to maintain. Devdutt Kamat argued that the school could not refer to maintaining order on the ground that some people were having problems with the hijab and were raising slogans. The same has been said in the government orders but this is not a valid basis for banning the hijab. It is the responsibility of schools to create an environment where I can exercise my fundamental rights freely.

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