Bengaluru: While hearing a bunch of petitions on hijab ban in some college campuses, Karnataka High Court on Tuesday said it would keep emotions aside and go by the Constitution.
"Keep all emotions aside. We will go by what constitution says. The Constitution is above Bhagwad Gita for me. I will go by the oath I have taken to the Constitution," he said.
Senior Counsel Devadatt Kamat argued that wearing of hijab is an essential part of Islamic religion and is protected by right to expression under Article 19(1)(a) and can be restricted only on grounds under Article 19(6).
Moreover, wearing hijab is a facet of right to privacy recognised as part of Article 21 by the Puttaswamy judgment of the Supreme Court, Kamat said. Also, the government order is outside the scope of Karnataka Education Rules and state has no jurisdiction to issue the same, he said.
Reading out Quranic verse 24.31 on dress code, Kamat said it mandates that the neckline should not be revealed to anyone other than husband. "Two injunctions in the holy Quran have been interpreted in several judicial decisions. One such decision is of Kerala High Court," he said.
Further reading out a judgment, Kamat said the right to practice religion is a fundamental right subject to public order, health and morality. He argued that the state cannot say what is an essential practice of a religion and what is not. That is the sole domain of Constitutional courts.
"Ultimately it boils down to this: whether the practice is essential to the religion or not. If a religious tenet does not allow women to become a priest, then the state cannot impose the same," Kamat said reading out the judgment.
He argued that religious practice cannot be tested on secular thoughts outside of religious authority, thus the secular thought cannot determine what is essential to a religion and what is not.
Kamat also submitted that the Karnataka Government relies on the Kerala High Court judgment to say hijab is not essential to Islam. This judgment is, however, not applicable at all, he said. The hearing is underway. (UNI)
