Don't Go That Far- Supreme Court Says To Argument That A Finding Of Karnataka HC On Quranic Verses Borders On Blasphemy

The Supreme Court today continued hearing the Counsel for the Appellants in the Hijab ban cases. Senior Advocates Devadatt Kamat and Advocate Nizamuddin Pasha concluded their arguments today. The Court said that it will continue the hearing on Monday. Senior Advocate Salman Kurshid is to begin his arguments on Monday, to be followed by Senior Advocate Yusuf Muchhala and Senior Advocate Meenakshi Arora.

The Bench comprising of Justice Hemant Gupta and Justice Sudhanshu Dhulia is hearing the batch of appeals. During his arguments, Advocate Pasha submitted that the Karnataka High Court's finding that some verses of the Quran have lost relevance borders on blasphemy. He said that God is the creator of time and that the verses of the Quran are relevant for all times to come. "Don't go that far", responded Justice Dhulia to remark about blasphemy, adding that it is just an opinion of the commentator. Advocate Pasha responded by saying that it was not the commentator but the Judge who said it.

It appears that the argument of Advocate Pasha was in the context of the following passage in the Judgment of the High Court:-

"History of mankind is replete with instances of abuse and oppression of women. The region and the times from which Islam originated were not an exception. The era before the introduction of Islam is known as Jahiliya-a time of barbarism and ignorance. The Quran shows concern for the cases of 'molestation of innocent women' and therefore, it recommended wearing of this and other apparel as a measure of social security. May be in the course of time, some elements of religion permeated into this practice as ordinarily happens in any religion. However, that per se does not render the practice predominantly religious and much less essential to the Islamic faith."

Senior Advocate Devadatt Kamat for some of the Appellants, continuing with his arguments from yesterday, started by pointing out a judgment of Austria, as a country from the sub-continent that has struck down a ban on headscarf that targets only one community. Yesterday Justice Dhulia had asked Kamat if there is any judgment from the sub-continent.

Kamat submitted that the state has not justified on public order, morality or health to impose the restriction on the right to wear Hijab under Article 25. He compared lawyers wearing 'namam'. He cited the example of Senior Advocate K. Parasaran wearing 'namam' to court and said that it does not violate discipline in Court. Justice Gupta said that Hijab cannot be compared to 'pagadi' worn in Rajasthan or Gujarat because it is required due to the climatic conditions.

Kamat argued that the state's justification of the ban on the ground that it was creating a law and order situation in schools is permitting heckler's veto. The Bench agreed that public order cannot be cited by the state to ban the use of Hijab.

Kamat said that the state's apprehension that if Hijab is permitted, others may wear a saffron scarf cannot be a ground, since wearing a saffron scarf will not be a bonafide, innocent display of faith, unlike wearing of Hijab.

Kamat submitted that the High Court's finding that Dr. Ambedkar had distinguished between freedom of religion and freedom of conscience in the Constituent Assembly debates is factually incorrect. He argued that boundaries between religion and conscience are vague and the High Court's attempt to distinguish between both is 'dangerous'. He argued that only Ghanshyam Gupta has spoken in the Constituent Assembly about conscience and that the words of every member of the Assembly cannot be taken as the gospel truth.

Kamat submitted that High Court went into the question of whether the practice is an essential religious practice without considering first whether there is a valid restriction on the right under Article 25. He submitted that the submissions on the 'essential religious practice' will be made by another counsel.

Kamat submitted that the impugned Government Order suffers from a complete non-application of mind and that High Court has supplemented reason to the order. He submitted that High Court's finding that the reasons mentioned in the Order are irrelevant as long as there is a power to issue such an order is incorrect.

He submitted that the state delegated its power to a non-state actor, the College Development Committee, under the impugned order, which is not permissible.

Advocate Nizamuddin Pasha made submissions on whether the practice of wearing Hijab is an essential religious practice. He submitted that not only essential religious practices, but all religious practices are required to be protected. He said that in the Bijoe Emmanuel's case, it has been held that all practices practised conscientiously will be protected under Article 25.

Advocate Pasha submitted that High Court's finding that there is no compulsion in Islam will mean that no practice of Islam is an essential religious practice.

He submitted that the word 'Khimar' has been used in the Quran for Hijab. He argued that the verse that "let there be no compulsion in religion" is with reference to conversion to the religion and not to religious practices as interpreted by the High Court.

He also submitted that the High Court made a mistake in reading the footnote of the commentary by Abdulla Yusuf Ali to hold that Hijab is not compulsory. He pointed out that the reference in the book, even which is only the opinion of the author, is with respect to 'jilbab' that God is forgiving and not Hijab.

He submitted that there is no temporal punishment prescribed in Quran to spiritual mandates. He said that the sequences of noncompliance are only in the afterlife. Justice Dhulia then said that there contradiction between saying that there will be consequences in the afterlife and saying that there is no compulsion. Pasha responded by saying that there is no compulsion in the form of temporal punishment.

In response to the arguments that restriction will violate Article 29 and that preventing a Sikh student from wearing a turban will be denying him education, Justice Gupta said, don't compare the practices of Sikhism with the practice of wearing the Hijab since it has been held in Judgments that it forms a fundamental part of the practice of Sikhism. "Don't draw parity with Sikhism", Justice Gupta said.

Yesterday, the Bench had asked Kamat if his argument that Secularism in India means Ekam Sat Vipra Bahuda Vadanthi, is acceptable to all faiths. The Bench had also posed a question of whether the fundamental right to dress, as claimed by Kamat will also include the right to undress. (read report)