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Hijab Case : Question Of Essential Religious Practice Does Not Arise When Individual Rights Are Asserted -Yusuf Mucchala To Supreme Court [Day 4]

Live Law News Networks
12 Sep 2022 12:15 PM GMT
Hijab Case : Question Of Essential Religious Practice Does Not Arise When Individual Rights Are Asserted -Yusuf Mucchala To Supreme Court [Day 4]
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The ERP issue will arise only when group rights are sought to be enforced, the lawyer argued.

The Supreme Court on Monday 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. The matter was heard by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia.

Senior Advocate Yusuf Mucchala appearing for the Petitioners raised a preliminary objection that the matter should be referred to the Constitution Bench.

He 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.

"Women who wear hijab must not be looked upon as caricatures. They must be looked upon with dignity. They are strong willed women and they feel they have got the power because of this. Nobody can impose their judgments on them."

Senior Advocate Salman Khurshid argued that the High Court judgment, in asserting Fundamental Duty under Article 51A(h) (promotion of scientific temper) of the Constitution, ignored Article 51A(f) which speaks of preserving "composite culture".

He also addressed the court on the issue of "qualified public spaces".

"Qualified public space may hold good in some places. If I am in the Army, I have to wear the prescribed uniform. If I am a member of Bar Council, I have to wear the prescribed uniform. I will wear the prescribed uniform. But the question is if I can wear anything more which is important for my culture."

Hearing will continue on Wednesday at 11.30 AM.

Courtroom Exchange On Fundamental Rights

Mucchala argued that denial of entry to students for wearing hijab results in denial of access of education.

Justice Dhulia asked Mucchala if it is his case that wearing Hijab is an essential religious practice in Islam.

Mucchla responded, "My argument is it is my right under Article 25(1)(a), Article 19(1)(a) and 21, and on a conjoint reading of these rights, my fundamental rights are violated…My right to access education, my right to personal dignity, privacy, right to practice religion, all of them have been violated. And the doctrine of proportionality, that has been completely ignored."

He argued that the right to privacy, right to freedom of expression and right to practice religion are not mutually exclusive but rather supplement each other.

"Unfortunately, High Court holds that Articles 19 (1) and 25 are mutually exclusive."

Justice Gupta remarked that the High Court merely said that the right to conscience and right to practice of religion are mutually exclusive.

However, Mucchala responded that both rights are guaranteed by the Constitution.

"Two rights are given, freedom of religion and freedom of conscience. There are atheists, agnostics. Some believe in universality of all religions. There are several individuals, and Constitution has given two rights. They are not exclusive, they complement each other."

On Essential Religious Practice

The Karnataka High Court has held that wearing of hijab is not a part of Essential Religious Practice in Islamic faith and thus, is not protected under Article 25 of the Constitution.

It was Muchhala's argument 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.

"Constitution clearly provides that Court should not lay down religion for people to follow, Court should not interpret religious scriptures…That is what the High Court has done… There are well settled rules of interpreting Quran, with which the Courts are not equipped with," he said.

Justice Dhulia pointed out that the Petitioners had themselves raised the plea of 'essential religious practice' before the High Court.

"What option does the High Court have? High Court gives a decision one way or other and you say it cannot be done," the judge said.

Mucchala responded, "Somebody must have done(raising the issue of essential religious practice) erroneously in enthusiasm. But the Court should know its limits…At that very moment, the Court should have said hands off, that we cannot decide whether it was essential religious practice or not."

Justice Gupta then said, "You are contradicting yourself. First you say question of essential religious practices must be referred to larger bench."

Mucchala responded that he was seeking reference of issues related to interpretation of Constitutional rights on religion.

Significantly, Khurshid, who commenced arguments after Mucchala, argued that Quran contains words of God, which came through the Prophet, and the same is mandatory.

As Khurshid handed over copies of the holy book to the bench, Justice Gupta remarked, "You would like us to interpret these verses as Mr. Mucchala said Court should not?"

Khurshid responded, "Your lordships have developed certain judicial techniques, Mucchala is on a slightly differently view…"

"What is your view? Is it an essential religious practice?" Justice Dhulia asked.

"It can be seen as religion, can be seen as conscience, can be seen as culture, can be seen as individual dignity and privacy," Khurshid responded.

Question of ERP not applicable to individuals asserting rights under Art 25: Mucchala

Mucchala argued that in a case of individual right, the essential religious practice must not be invoked.

He submitted that Article 25 merely speaks of individual's right. Article 26 speaks about religious denomination's right. Thus, when a group asserts their right under Article 26, then the question comes what are matters of religion. Also, the issue of ERP might come when a State is making a law as per Article 25(2). However, on a case of individual's exercise of right under Article 25(1), the issue of ERP will not arise.

"So far as individual's rights are concerned, there is no question of application of essential religious practice. That question comes only when a religious denomination is asserting its right," he submitted.

"So in this case Article 26 is not applied?" Justice Gupta asked.

Mucchala responded in the affirmative, stating that there is no religious denomination before the Court.

"So your argument is that the right to wear the veil comes from Article 25 and 19?" Justice Gupta asked.

Mucchala responded in the affirmative.

Puttaswamy judgment & 'Decisional Autonomy' to wear Hijab

He referred to the Puttaswamy judgment which held that the choice of appearance are aspects of privacy.

"It is my preference, whether to wear hijab. My Quran says observe modesty. And to observe that modesty, I must have this personal marker… I need not say how much of my religion I am following. I may express a part of my religion, I may choose not to express another party," Mucchala argued.

Khurshid submitted, "We will not say uniform must be dispensed with. But there is something in addition with the uniform which should be permitted."

Mucchala further quoted from the Puttaswamy case insofar as it held that validity of the State's Act must be seen not on the basis of the objective but on the impact of the State's law.

"Here, the State says the objective is to promote positive secularism. But what is the impact? The object might be noble, but the effect has to be seen… Merely for wearing a piece of cloth over head, education is denied. Wearing a turban is not objected. If you tolerate that, you are tolerating diversity."

Khurshid added, "Ghoonghat is considered very essential for women in parts of Rajasthan and Uttar Pradesh, when they go out. When we visited Gurudwara, we immediately covered our head, with a handkerchief at least… One of my clients is a Sikh lady, some of them have started wearing Turbans and issue may arise for them too."

Further reading out parts from Puttaswamy judgment on decisional autonomy, Mucchala said, "It is my decisional autonomy what to dress, whether to keep a small beard, long beard, whether to wear a cap."

The State in objections said that there are differences among scholars regarding necessity of wearing of hijab.

Responding to this, Mucchala argued, "Scholars may disagree, but what about lay people, they may pick up a practice. It is not the job of the court to say that why do you follow this scholar and not that scholar."

High Court ignored pleadings: Mucchala

Mucchala also argued that the High Court finding that there are no pleadings in petition as to when the students started wearing Hijab is wrong.

He showed the pleadings before the High Court, which mentioned that "…previous students since several years have continued to wear hijab without any hindrance".

"There is not denial of this by the respondent", Muchhala said.

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, on the other hand submitted that the High Court had misinterpreted Islamic verses to hold that Hijab was not mandatory.

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.
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