Hijab Ban Forces Muslim Girls Out Of Schools, Violates Concept Of Fraternity : Sr Adv Huzefa Ahmadi To Supreme Court [Day 5]

The Supreme Court today continued hearing the batch of petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim girl students in some schools and colleges in the State.Today was the fifth day of hearing by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. It heard Senior Advocate Aditya Sondhi appearing for an intervenor and Senior Advocates Rajeev Dhavan and Huzefa Ahmadi for the Petitioners.Ahmadi argued that the impugned GO against wearing hijab in schools misunderstands the concept of fraternity and confuses the same as the anti-thesis of diversity. It also forgoes the "legitimate state interest" to encourage diversity in the name of uniformity and discipline, he added. He submitted that by prohibiting hijab in schools, the State has virtually forced Muslim girl students out of schools. He argued that even if it is found Hijab is not an essential religious practice, it will be a cultural practice protected under Article 29(1) of the Constitution. "If somebody is getting provoked by the hijab, he should have a sense of brotherhood and fraternity. Does the state's priority lie with promoting education or with this? Is the Hijab so very intrusive, that you have to ban it?"Read arguments by Sr Adv Sondhi and Sr Adv Dhavan here and here. During the hearing, the Judges also discussed that the drop out rates among girls is very high, but this was not argued before the High Court. "Before High Court you raised only Essential Religious Practice," Justice Dhulia said. Delete Justice Dhulia : The drop out rates among girls is very high, but this was not argued.Justice Gupta : High Court could have examined it if there were pleadings.Justice Dhulia : Before High Court you raised only ERP.Justice Gupta : These are factual questions- drop out— Live Law (@LiveLawIndia) September 14, 2022 Justice Dhulia then asked Ahmadi if they have authentic figures of students drop out. Ahmadi informed the Court that as per the information available with them, 17,000 students abstained from the exam. Preliminary Issue Ahmadi raised a preliminary objection and urged the bench to refer the matter to a larger bench. "What this Court held in Sabarimala reference was it was not sure which test to apply for essential religious practice - whether the text, or whether the view of a leader or whether every religious practice will be accepted. So today we are not clear on which test," he said. Justice Dhulia agreed that if the court is required to venture into the aspect of essential religious practice, then Ahmadi is "probably right". Ahmadi added, "Which is the test to be applied is a bit of conundrum in the light of the reference, that is why I say it should await the decision on reference." Karnataka GO on Hijab Ban misunderstands concept of Fraternity: Ahmadi Ahmadi argued that though the State claims that its GO prohibiting wearing hijab in educational institutions is "innocuous", the circular is in fact the "anti-thesis" of fraternity. He referred to the Preamble of the Indian Constitution to argue that Dignity of individual is put before the Unity of nation. He also referred to fundamental duties under Articles 51A(e) and 51A(f) of the Constitution which cast an obligation to promote harmony and the spirit of common brotherhood and to preserve composite culture. "The purpose of introducing fraternity as a constitutional value is to introduce horizontal and social sensitivity to social inequality. Fraternity is a term which has not received judicial interpretation like equality and liberty." "Equality and liberty have defined meanings, fraternity is still..." Justice Dhulia said, when Ahmadi responded, "In Preamble, Equality and Liberty are qualified. Fraternity is absolute" "Fraternity is about dignity," Justice Dhulia remarked. "Dignity is wide, so fraternity is also wide," Justice Gupta opined. Ahmadi responded, "Fraternity is understood as brotherhood, that is to recognize diversity." Legitimate State Interest to promote Diversity, Not enforce Uniformity: Ahmadi Ahmadi submitted that the legitimate state interest is in encouraging education, especially among minors. "Is it legitimate state interest to adopt a restriction which will encourage drop outs?" he asked. He showed portions from the GO that mandate students to behave in fraternal manner and transcend their group identity. "The impugned GO misunderstand the concept of fraternity and confuses the same as the anti-thesis of diversity…"Transcending group identity" is not synonymous with Fraternity at all," he said. Ahmadi further quoted portions from GO which state that students carrying religious observances is an obstacle to unity. "When they wrote the GO, they may not have been aware that it would be put to this scrutiny. Perhaps they mean peace should be...

Hijab Ban Forces Muslim Girls Out Of Schools, Violates Concept Of Fraternity : Sr Adv Huzefa Ahmadi To Supreme Court [Day 5]

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