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

LIVELAW NEWS NETWORK
14 Sep 2022 12:52 PM GMT
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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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...

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.

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 maintained. The HC judgment also says the GO could have been better worded," Justice Dhulia said.

Ahmadi responded that there is a common thread which runs through the GO— that uniformity in terms of dress, uniformity in terms of thoughts, that is sought to be the legitimate state interest.

"Legitimate state interest is to encourage diversity, not to have standardisation of all practices. Why should someone feel that someone's religious observances obstruct secular education or unity?

Why should someone get provoked if someone wears hijab and goes to school? Why should another student should have a problem? If it provokes, you have to address that, otherwise you are allowing someone to be bullied. You hardly want that to happen in campus."

"This Court has disapproved forced homogeneity," Ahmadi added.

Right to wear Hijab protected under Article 29: Ahmadi

Ahmadi 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. "Article 29 cultural right is absolute."

"Assuming it is a cultural right, are we going to uphold a circular which says you will be denied education if you wear this dress? And so many woman are wearing so it is intrinsic to the culture."

Hijab ban forces Muslim girl students out of schools: Ahmadi

Ahmadi argued that Muslim girl students were earlier confined to madrassas and they had broken stereotypes to join secular education. However, the impugned GO takes away what they (students) consider as an essential practice and the effect is they will be forced to go back to Madrassas.

"There is no foundation of that in the writ petition read by Mr. (Sr AdvYusuf) Mucchala that you are going to Madrassas, that is not the case set up. High Court has not discussed it," Justice Gupta said.

Ahmadi responded,

"When your lordships are considering a matter of vast importance, impacting several people...is it not a matter of common sense, whether or not evidence was read out, is not a common sensical fall out of the GO.

We all know why they wear hijab, they come from conservative backgrounds. What will be natural fall out of this? From a pure common-sense point. Is it not likely the effect. Most of girls wearing hijab come from very conservative families… It will spell a death a knell for their secular education."

Justice Gupta pointed out that there is no pleading that these students are from the deprived sections.

Justice Dhulia then asked Ahmadi if it is his argument that the girls don't want to wear hijab and they are forced to?

"No, the parents might say don't go to school go to madrassa… I have a detailed report of PUCL regarding the impact of this decision," he responded.

Justice Gupta then expressed his reservation on neutrality of the PUCL report, pointing that it starts with the title "critique of Karnataka HC judgment".

"If the basis of the report is the criticism of the judgment, probably the basis is not right," the Judge said.

However, Ahmadi submitted that he is merely referring to the testimonials of affected girls.

"The State has to see where does the public interest lie? Whether in enforcing discipline or in promoting education? If the circular targets one community, though facially neutral, it will fall foul of Art 14."

Impugned GO against objectives of Karnataka Education Act: Ahmadi

Ahmadi argued that the Karnataka Education Act promotes unity in diversity and the impugned circular is against the objective of the Act.

Referring to Sections 15 (b), 39(1)(b) and 39(1)(c) of the Act, Ahmadi said, "The strand which runs through the Act is to accommodate religious differences. Now, the Rules. Only the Rules speak of uniform."

Significantly, Rule 11 of the Education Rules makes provision for stipulating uniform. In this regard Ahmadi submitted,

"Under the exercise of powers of the rules, you cannot do something against the Act… There is no power given to proscribe the hijab… High Court says they have inherent powers, but what power do they have except Rule 11?"

At this juncture, Justice Gupta intervened to mention that even if wrong section is mentioned, if State has the power, it can exercise it.

"See, powers they have" Justice Dhulia said.

Ahmadi responded, "The Act does not provide for disallowing hijab, in fact it provides for reasonable accommodation. The GO is arbitrary for its whimsical nature and timing, in the middle of academic year barely a month ahead of exams."

He added that the GO was applied retrospectively— while it was issued in February 2022, girls were stopped from December 2021.

Karnataka GO indirectly discriminates against Muslim girl students: Ahmadi

Ahmadi argued that though the circular is facially neutral, it indirectly discriminates against Muslim girl students.

He cited Greek writer Aesop's fable about serving soup on a shallow bowl to a fox and a stork.

"Though shallow bowl is seemingly neutral, the stork can't have the soup because of the long beak. So, seemingly neutral measures can have greater adverse impact on certain categories," Senior Advocate Aditya Sondhi had argued when he also cited Aesop's fable during his arguments in the morning session.

Background

A batch of 23 petitions were 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 Government Order dated 05.02.2022, which 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 had 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.

In the previous hearings before the Apex Court, submissions by Senior Advocate Devadatt Kamat for petitioners pertained to Article 25 of the Indian Constitution, application of the Heckler's Veto in India, bonafide practice versus belligerent display of religion, difference between freedom of conscience and religion and; whether the Government Order was administratively sound.

Advocate Nizam Pasha for the Petitioners submitted that the High Court had misinterpreted Islamic verses to hold that Hijab was not mandatory.

Senior Advocate Yusuf Mucchala appearing for the Petitioners produced certain documents from Govt records to show that the right of education of Muslim girls is affected because their cultural and religious rights are not accepted. He argued that the High Court should not have entered into the issue of essential religious practice as the question was relating to an individual's fundamental right. Mucchala argued that Court should not embark upon the task of interpreting Quran and should not pick up just one view.

The bench has also raised several queries like whether religious clothing can be worn in a government run institution in a secular country. The bench also asked the counsels whether if it is held that freedom of expression includes the freedom to dress, would it also include the freedom to undress?

Case Title: Aishat Shifa versus State of Karnataka SLP(c) 5236/2022 and connected cases.

Reports of previous hearings:

Question Of Essential Religious Practice Does Not Arise If Hijab Is Shown To Be Bonafide Practice In Muslim Women: Sr Adv Rajeev Dhavan Tells Supreme Court [Day-5]



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