Rudraksha Or Cross Aren't Comparable To Hijab As They Are Worn Inside Dress, Says Justice Hemant Gupta During Hearing

On Wednesday, a Division Bench of the Supreme Court of India continued to hear the challenge against the decision of the Karnataka Government to ban headscarves or the hijab in government colleges. A batch of 23 petitions was filed in this connection, some of which were writ petitions filed directly before the Supreme Court, while others were appeals by special leave preferred against the judgement of the Karnataka High Court upholding the ban on the hijab. The Bench comprised Justices Hemant Gupta and Sudhanshu Dhulia. Senior Advocate Devadatt Kamat, appearing on behalf of students from Kundapura, argued at length about the unconstitutionality of the Government Order dated February 5, 2022, placing particular emphasis on the principles of 'reasonable accommodation' and 'positive secularism'. Mr Kamat's objective, which he disclosed at the outset, was to persuade the Bench to refer the matter to a Constitution Bench under Article 145(3). Petitioner's Arguments On behalf of the aggrieved petitioners from Kundapura, Senior Advocate Devadatt Kamat highlighted the principle of 'reasonable accommodation', which he said had been assimilated in the Indian constitutional jurisprudence, having been granted the imprimatur by a number of decisions, especially those written by Justice (Dr.) D.Y. Chandrachud. Mr Kamat explained that this doctrine could be traced back to American and South African Courts and proceeded to place significant reliance on a number of foreign judgements. The major thrust of his argument was the decision of the Constitutional Court of South Africa, whereby a local school, which had prevented an Indian-origin girl from wearing a nose ring, was ordered to "reasonably accommodate different religious and cultural practices". Mr Kamat also relied on the judgement of Justice Scalia of the United States Supreme Court in a case discussing the permissibility of wearing headscarves in workplaces and the decision of the English House of Lords distinguishing between reasonable accommodation (hijab and salwar-kameez) and unreasonable accommodation (jilbaab). Mr Kamat also explained that he relied on these decisions rendered by foreign courts not because they had any authoritative value in the present context but because they encapsulated the crux of the arguments advanced by him. The Bench, however, was unwilling to accept the proposition in its entirety, pointing out that the societal ethos and culture of a conservative nation like India were dissimilar.Justice Gupta : How can we compare USA and Canada with India? We are a conservative society.Kamat : Let good thoughts come from everywhere, as the Vedas say.J Gupta : Their judgments is based on their society,their culture, we can't totally follow.#Hijab #SupremeCourt— Live Law (@LiveLawIndia) September 7, 2022 Next, Mr Kamat brings out the contrast between negative and positive secularism, with the former, adopted in countries like Turkey and France, mandating a clinical separation from all religion and religious activities, while the latter requires the State to enable the exercise of fundamental rights and the religious freedoms of all communities. Indian secularism has an overwhelmingly positive content, Mr Kamat argued. According to him, the Indian interpretation of secularism stems from the Vedic percept of Sarva Dharma Sama Bhava. In support of his contention, he placed reliance on Aruna Roy v. Union of India [AIR 2002 SC 3176]. He also explained how Dr B.R. Ambedkar had staunchly refused to accept a proposed amendment introduced during the framing of the Constitution seeking to ban any visible signs or indicators of religion. Dr Ambedkar had said that it was against the principle of positive secularism. It was this spirit of positive secularism, Mr Kamat submitted, that was violated by the impugned GO. He pointed out how students coming to schools and colleges wear rudraksha mala, cross, namam, and other religious ornaments. Unwilling to accept this analogy, Justice Gupta explained that such ornaments, albeit religious in nature, are usually concealed and not overtly visible.Justice Gupta : Rudraksh or Cross is different. They are worn inside dress, not visible to others. There is no violation of discipline. #Hijab #SupremeCourt— Live Law (@LiveLawIndia) September 7, 2022 Further, Mr Kamat submitted that the GO is violative of the right to equality enshrined in Article 14 as it specifically targeted the visible manifestation of only one religion. On the issue of the freedom of expression under Article 19(1)(a), he relied on National Legal Services Authority (NALSA) v. Union of India [AIR 2014 SC 1863], which accepted that dress may be a part of identity. Incensed by this line of argument, Justice Gupta exclaimed that the right to dress cannot be taken to illogical lengths and would not include, for instance, the right to undress. Acceding, Mr Kamat explained that it could not ...

Rudraksha Or Cross Aren't Comparable To Hijab As They Are Worn Inside Dress, Says Justice Hemant Gupta During Hearing

Awstika Das

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