Hijab Case- State Can't Say "We Will Give You Education, If You Surrender Your Right To Privacy": Adv Shoeb Alam Tells Supreme Court [Day 6]

The Supreme Court is continuing hearing the petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim students in educational institutions.A bench comprising Justices Hemant Gupta and Sudhanshu Dhulia is hearing the matter. Live updates here.Senior Advocate Jayna Kothari appearing for the Petitioners argued that the Karnataka GO banning hijab in educational institutions is a case of "intersectional discrimination", involving discrimination on the ground of both religion and sex. She also submitted that under Article 15(1) of the Constitution, discrimination of religion does not require a threshold as high as essential religious practice. Senior Advocate Abdul Majeed Dhar focused on the injunctions in Islamic law regarding hijab. It is his case that Hijab is mandatory as per the holy Quran and the High Court's interpretation that absence of punishment makes the prescription directory in nature, is wrong. (Advocate Nizam Pasha had also taken a similar line of argument. Read more here) "We are living in a great nation with a great Constitution protecting us, our faith. We have a constitutional protection guaranteed by the Preamble, it is held as part of basic structure faith, belief are protected in Preamble," Dhar submitted. Senior Advocate Meenakshi Arora submitted that India has ratified the Convention on the Rights of Child, without any reservation. It protects the children's right to practice faith. However, she submitted that the High Court has completely ignored it. She also submitted that this case is important from an international perspective of providing 'reasonable accommodation' to persons belonging to religious minorities. "Why I refer to other jurisdictions? Just as we Hindus are a majority in our country and minority elsewhere, wherever we are a minority we carry our practices," she said. Advocate Shoeb Alam argued that Hijab is a matter of person identity and the extent to which an individual chooses to cover his or her body to feel secure from public gaze is a matter of personal choice. The same cannot be taken away by virtue of a person being in public place. He also argued that the issue of 'Essential Religious Practice' had to be argued before the Karnataka High Court because the impugned GO referred to certain precedents (as per Petitioners wrongly interpreted by the State) and made a statement that hijab was not an essential practice. (Read Senior Advocate Rajeev Dhavan's "false foundations" argument on same lines here)Alam also contended that State can't enter into a barter system with its citizens, asking them to surrender their right to privacy in exchange for right to education.COURTROOM EXCHANGERight to wear Hijab protected even in public places: AlamAlam argued that Hijab is a matter of person identity and is linked to a person's dignity. Even a prisoner has fundamental rights; and though there is a shrinkage of rights, there is no surrender.He further submitted the right to wear hijab in educational institutions can be traced back to the Puttaswamy judgment, where the Supreme Court held that privacy attaches to a person, not to a place. "This is how I take my privacy to the school," he said.Alam argued that the extent to which an individual chooses to cover his or her body to feel secure from public gaze is a matter of personal choice."After Navtej Johar, Puttaswamy, the rights are so wide, there is no hierarchical difference between enumerated and non-enumerated rights… The High Court makes a mistake by saying these are unenumerated rights and are less protected. That takes us back several years before Puttaswamy decision."State can't barter right to education in exchange for right to freedom of religion: AlamAlam argued that there is a no concept of "barter of fundamental rights" in Indian Constitution. He submitted that if there is any violation of any fundamental right by the effect of the GO, it is that effect which the Court will look at, not the intent of the GO."What is the barter of rights you are talking about here?" Justice Dhulia asked Alam.He responded, "On one end there is my right to education, on the other end, there is my right to privacy, right to dignity, right to culture. The State GO says, I will give you education provided you surrender your right to privacy. Can it be done? The answer is an emphatic NO."He referred to St. Xavier's case where the Supreme Court held that if the State compels the surrender of fundamental right to grant a favour, it is inconceivable."If the State is extending you a privilege, state cannot exact a barter from you on a fundamental right guaranteed by the Constitution…State can't say I will give you aid on condition that you will surrender your Article 30 rights. This was the judgment in St. Xaviers case."He also referred to the Olga Tellis case where it was held that Fundamental rights are not conferred to benefit the individuals but to...

Hijab Case- State Can't Say "We Will Give You Education, If You Surrender Your Right To Privacy": Adv Shoeb Alam Tells Supreme Court [Day 6]

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