Hijab Case| Secularism Doesn't Mean Students Of Only One Faith Won't Display Religion : Devadatt Kamat Before Supreme Court [Day 2]

The Supreme Court, on Wednesday, continued hearing the batch of petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing of Hijab by Muslim girl students in some schools and colleges in the State. The matter was heard by the bench comprising Justices Hemant Gupta and Sudhanshu Dhulia.Senior Advocate Devadatt Kamat appearing for the Petitioners argued that the Government Order is not "innocuous", as argued by the State, but violates students' fundamental rights under Article 19, 21 and 25 of the Constitution. He contended that the GO stated that prohibiting Hijab will not violate the right to practice religion and left the matter to be decided by the College Development Committees. "If the "mighty State" already says that, CDCs will have no other option but to ban hijab, he added. He further submitted that India practices "positive Secularism" and hence, government must exercise "reasonable accommodation" and allow the Petitioners to wear headscarf in addition to uniform. He sought that the matter be referred to a Constitution Bench since, according to him, the case involves a primary question as to whether the State has failed in its obligation to provide for reasonable accommodation for a student's rights under Articles 19, 21 and 25. "I am not challenging the prescription of uniform. Your lordships are right, can anybody turn up in a jeans? I respectfully bow down. I do not challenge the uniform. The challenge is against the State saying it will not allow student to wear hijab despite wearing uniform." Hearing will continue tomorrow. Live updates here. Freedom of Expression under Article 19 includes Dress: Kamat Kamat submitted that right to freedom of expression under Article 19 of the Constitution includes dress. He said, "By actually saying if you come in school wearing a hijab we will not allow you, State violates Article 19… The GO is giving petitioners a Hobson's choice, forcing them to choose between their identity and dignity and right to education." "You can't take it to illogical ends. Right to dress will include right to undress also?" Justice Gupta orally remarked. "Nobody is undressing in a school… Question is wearing of this additional dress as part of Article 19, can it be restricted?" Kamat responded. He submitted that reasonable restrictions under Article 19(2) relating to public order, morality, do not get attracted to the present case. "Advocate General conceded that the GO is not based on public order… Then ground of morality. If I wear a headscarf, whose morality is offended?... Whether the wearing of headscarf matching the colour of uniform is offending anyone else's fundamental rights or legitimate state interest so as to warrant the State issuing the GO?" Whether Fundamental Rights of students can be suspended?: Kamat Kamat asked whether a student citizen is expected to surrender her fundamental rights under Article 19, 21 and 25 as a pre-condition to access education. "The long and short of the argument of the other side is you exercise the right outside the school. This argument came to be rejected in the Bijoe Emmanual case." In Bijoe Emmanual v. State of Kerala, relief was granted to Jehovah Witness students who were expelled from school for not singing the national anthem due to their faith. It had observed that personal views and reactions regarding a particular religious practice are irrelevant if the belief is held genuinely & conscientiously as part of religion. "If the other side's argument is to be accepted, the Supreme Court should have shunted out the students (in Biijoe Emmanual case) saying keep religion out of school," Kamat said. Justice Dhulia however opined that this case was on a different footing. "In that case, judgment was by Justice Chinnappa Reddy, it was held that there was no insult to national anthem, as the students stood up. Then it touched upon tolerance. It is on a different case," Justice Dhulia said. Principle of Reasonable Accommodation: Kamat Kamat argued that the petitioners were compliant with school uniform and sought to wear headscarf in addition to that. "It is a case of headscarf; it is not a burqa or jilbab…they are different." He pointed out that the Petitioner is present in court wearing Hijab, but, "Does the head scarf offend anyone? Does the headscarf of the same uniform colour cause any indiscipline?" Kamat referred to a House of Lords judgment which did not allow jilbab, as school has provided reasonable accommodation of headscarf. "The question is whether a particular dress is a reasonable accommodation," he said. KVs permit wearing Hijab: Kamat Kamat mentioned that even Kendriya Vidyalayas, under the Central Government, allow wearing hijab. He referred to the circular for Kendriya Vidyalayas and submitted that head scarf with matching colour of uniform for girls is...

Hijab Case| Secularism Doesn't Mean Students Of Only One Faith Won't Display Religion : Devadatt Kamat Before Supreme Court [Day 2]

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