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

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 ...

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.

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