Supreme Court bench comprising Justices Hemant Gupta and Sudhanshu Dhulia will hear a batch of petitions challenging the ban on wearing Hijab in educational institutions in Karnataka.A batch of 23 petitions is listed before the bench. Some of them are writ petitions filed directly before the Supreme Court seeking the right to wear hijab for Muslim girl students. Some others are special...
Supreme Court bench comprising Justices Hemant Gupta and Sudhanshu Dhulia will hear a batch of petitions challenging the ban on wearing Hijab in educational institutions in Karnataka.
A batch of 23 petitions is listed before the bench. Some of them are writ petitions filed directly before the Supreme Court seeking the right to wear hijab for Muslim girl students. Some others are special leave petitions which challenge the judgment of the Karnataka High Court dated March 15 which upheld the hijab ban.
The SLPs have been filed against the judgment dated March 15 passed DAY 6by the High Court of Karnataka, upholding Government Order dated 05.02.2022, which has effectively prohibited Petitioners, and other such female Muslim students from wearing the headscarf in their Pre-University Colleges. A Full Bench of the High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice JM Khazi held that wearing of hijab by women was not an essential religious practice of Islam. The Bench further held the prescription of uniform dress code in educational institutions was not violative of the fundamental rights of the petitioners.
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Arguments over for the day. Hearing to resume at 2 PM on Monday (Sep 19).
Bench to Dave : Try not to repeat.
Dave : Some amount of repetition is bound to be there.Different lawyers emphasise different things. There are different ways.
Justice Gupta : But the point is one.
Dave : Its like God, one God but different religions.
Bench asks Dushyant Dave how much time he will take.
Dave : I can't say. May be four hours.
Raj : Criteria which is facially neutral can affect certain particular groups. For eg, an employer can say that employees should know all the Vedas...this can exlcude..
Justice Gupta : Don't go that far...the point of indirect discrimination has been raised
Raj : The essential motivation seems to be that there is a prejudice that #hijab is patriarchal. This assumption is not correct. State action cannot be prejudiced nature of gender stereotypes. The assumption that women wearing hijab is subordinate or subservient is not correct.
Adv Thulasi Raj seeks to make submissions on points of discrimination and proportional.
Raj : The State aspect, whether it can be motivated by prejudice, this has not been covered. State action is motivated by prejudice..
Counsel : In Shia faith, when you are in doubt, you are required to consult the Ayattollahs. The verdict of Ayattollahs on hijab is clear.
Justice Gupta : So instead of referring to any book, there is a living scholar.
Another lawyer now argues to give the Shia perspective
Counsel : In Catholic faith, there is a Pope. In Shia context, there could be more than one scholars. In Shia, the sources of law are the same. But somewhat like Catholic faith, for the purposes of a follower, my religion tells me to consult scholars, Ayattollahs
Counsel : Islamic scholarship developed over decades. Historically, it is in Iran and Iraq. In India, Shias are in minority.
Justice Gupta : You are saying HC judgment is incorrect?
Counsel : Yes, because Shia perspective has not been taken.
Another lawyer starts arguments- she says she is focusing on the point of right to education.
Counsel refers to Articles 45 and 46 - Unnikrishnan judgment made it clear that the content of right to education has to be culled from these directive principles.
Bhushan : Over the years, it has acquired a religious identity, and that is protected under Article 25. It may not be prescribed as an essential practice by Quran. But if it is a bona fide practice followed by several women, then it cannot be proscribed.
Bhushan : The religious practice can be proscribed only if it is against the grounds of public order, health or morality and these three rights are absent in the case of hijab.
Bhushan concludes.
Bhushan : If the rationale is to erase religious markers from school, then you have to proscribe all religious expressions.
Bhushan : I don't have to say it's essential, it's enough to say that it's something people from a particular religion like to wear to express their religious identity.