Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC

Mustafa Plumber

22 Feb 2022 12:24 PM GMT

  • Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC

    A Full Bench of the Karnataka High Court today continued hearing Advocate General Prabhuling Navadgi on behalf of the State, in the petitions filed by Muslim girl students, who have challenged the action of a government college in denying their entry for wearing a hijab (headscarf). Today is the 8th day of the hearing before the Full Bench.Navadgi told the Bench comprising Chief Justice Ritu...

    A Full Bench of the Karnataka High Court today continued hearing Advocate General Prabhuling Navadgi on behalf of the State, in the petitions filed by Muslim girl students, who have challenged the action of a government college in denying their entry for wearing a hijab (headscarf). Today is the 8th day of the hearing before the Full Bench.

    Navadgi told the Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi that petitioners have not shown that wearing hijab is an essential religious practice in Islam and thus, the protection under Article 25 of the Constitution is not available to them.

    He further argued that wearing hijab does not stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).

    "If somebody is to come before lordships seeking a declaration, that we want every women of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating. According to me it is impermissible in this day and age...dignity of the women must be kept in mind," he said.

    The Bench also heard Senior Advocate R Venkataramani, appearing on behalf of college teachers who are made respondents in a writ petition and Senior Advocate S. Naganand, appearing for govt PU college, its principal and lecturers.

    Wearing Hijab not essential religious practice: AG

    AG referred to the case of Dr. M. Ismail Faruqui v. Union of India (Babri Masjid case) the Supreme Court negated the argument that praying in a mosque is an essential practice.

    "The protection under Articles 25 & 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential & integral part of practice of that religion...A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India," it was held therein.

    He stated that this decision was rendered in face of certain suras in Quran that were mentioned to claim mosque essential to offer prayers. Thus, the AG placed on record of the Court certain Suras of the Holy Quran, translated to English by Syed Yusuf Ali.

    "Syed Yusuf Ali books also contains commentary. I would place it on record of the court. It is not for us to elaborate, I leave it to the court on how it is to be construed...We have not ventured and we have great reverence, respect and prayers when referring to the holy books. Except for the translation we have not done anything," he said.

    He argued that Sura 24 Verse 31, which the petitioners contended makes a reference to 'Khumur' or a 'headscarf', does not mention hijab.

    He also referred to Sura 33, Verse 59, which purportedly refers to long gown, not headdress.

    The AG contended that the source on which the petitioners have relied is a website created by few volunteers and it is not authorized.

    The Chief Justice then inquired if it is the State's argument that portion of the Quran the petitioners have relied also does not mention about hijab.

    Justice Dixit also sought a clarification qua the Kerala High Court judgment which held that wearing hijab is an essential religious practice.

    The AG responded,

    "In Kerala High Court, what Justice Mustaque has done is, the Arabic version of this speaks of "Khumar", Khumar he says is the dress worn over head. There the reference is to Hadith. The judgment is pre-Shayra Bano and Sabarimala case."

    Petitioners unable to discharge burden: AG

    The AG referred to the case of Mohd. Hanif Quareshi & Others vs The State Of Bihar, where the Supreme Court had considered the issue whether cattle slaughter restrictions interfered with religious practice. It was held therein that:

    "No affidavit has been filed by any person specially competent to expound the relevant tenets of Islam. 'No reference 'is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow".

    In this vein, the AG argued that it is for the petitioners to demonstrate beyond doubt as to what is compulsory to be followed. "During the course of hearing court asked petitioners, what is obligatory and what is optional. I feel it is for them to satisfy your lordships."

    Also Read: Hijab Ban : Karnataka High Court Refuses Interim Relief To Permit Degree College Students To Wear Headscarves

    The AG further pointed out that it was held in that case that what is optional does not constitute ERP.

    "I read this judgment (Qureshi) to show that it has said reading of Quran has shown that sacrifice of cow on that day is not obligatory. The very fact of an option seems to run counter to an obligatory duty. What is optional is not compulsory; What is not compulsory is not obligatory; What is not obligatory is not essential."

    AG told the Bench that in France, there is a total prohibition of wearing hijab in public. But it is not that there is no Islam religion in France. "Without Hijab Islam can survive? I just wanted to give the example of France," he said.

    Argument of 'free expression' under Article 19 destructive of 'compulsory practice' argument under Article 25: AG

    The petitioners had argued that wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution.

    Responding to this, the AG today contended,

    "According to me that arguments is mutually destructive to argument of Article 25. If their argument accepted, persons who do not want to wear hijab will have the right to not wear also. It would mean there is element of option. Claiming Article 19(1)(a) right is destructive to Article 25. Article 25 right is for compulsory practice. When you assert Article 19(1)(a), it means choice. Art 25 has an element of compulsion as far as dress is concerned. The consequences of a declaration of a court in ERP is that every member of the community is bound to abide."

    At this juncture, the Chief Justice inquired from the AG as to what is the State's stand if the petitioners case is based only on Article 19(1)(a).

    He responded,

    "The right to wear hijab as a Article 19 right can be restricted under Article 19 (2). In the present case, Rule 11 places a reasonable restriction inside the institutions. It is subject to institutional discipline."

    Justice Dixit then remarked, fundamental rights are not seen as watertight compartments.

    The AG continued, "We have a law in the form of Karnataka Educational Institutional Classification. Rule 11 can be called into question but that has not been questioned. This rule imposes upon them a reasonable restriction on wearing a particular headgear."

    Reliance was placed on State Of Madras v. VG Row, which discussed the test of reasonableness of restrictions.

    The AG submitted,

    "Reasonableness of uniform is not in question. This restriction of uniform is upto 17 years, in PU-II. The Education Act's preamble says formation of secular outlook as an objective. The restriction on wearing hijab is not within the school, it is only within the classroom, during the class hours. The discontinuation of particular practise, does it have any change in religion."

    He also relied on the case of Justice KS Puttaswamy v. Union of India (privacy judgment) to argue that privacy ensures that while on one hand, individual has a protected zone of privacy, yet on the other, exercise of individual choices is subject to rights of others to lead orderly lives.

    He submitted, "A right cannot be exercised in isolation in public spaces. Institutional discipline is paramount."

    "The independent claim of Article 19 (1) (a) cannot go with Article 25 claim", the AG asserted.

    Wearing hijab opposed to constitutional morality and individual dignity: AG

    The AG today argued that even if all the arguments made by the petitioners are accepted, the Court will have to see whether the mandate to wear hijab would stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).

    In this case, the Supreme Court speaking through Justice DY Chandrachud had held that individual dignity is a protected fundamental right. Hence, the place of religion in public places must be conditioned by a constitutional order. Practices which are destructive of liberty and those which make some citizens less equal than others cannot be countenanced.

    Justice Chandrachud had observed,

    "To treat women as children of a lesser god is to blink at the Constitution itself...To allow practices derogatory to the dignity of a woman in matters of faith & worship would permit a conscious breach of the fundamental duties of every citizen."

    In this vein, the AG submitted,

    "If somebody is to come before lordships seeking a declaration, that we want every women of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating. According to me it is impermissible in this day and age...Dignity involves liberty; liberty involves choice. The entire submission of petitioners is based on compulsion.The entire claim of petition is to make compulsion, it goes against fundamental ethos of Constitution."

    Justice Dixit inquired whether a declaration that Mangalsutra is an essential practice of Hindu religion would mean that the Court has directed all Hindu women to wear it?

    The AG responded, "Today by religious sanction a judicial declaration is sought. The element of choice goes away. A women concerned becomes obligated by religious sanction to wear that particular dress."

    "You want to say suppose the court hold that wearing of hijab is essential religious practice, the women who do not wear will be lowering their dignity?," the Chief Justice asked.

    "Certainly milords and it is in the context of dress," the AG responded.

     He continued,

    "This according to me is concept of liberty of that particular person. Choice to wear, every women of every faith has that choice...There cannot be a religious sanction by way of judicial declaration. This is not for college or school but entire community...women cannot be subjected to a compulsion of a dress in the context of their (petitioners') submissions."

    The Bench then inquired if the Sabarimala judgment can be followed in view of the review pending before the larger bench. "What is the legal authority if a judgement is referred to a larger bench, should courts refer to the judgement or not," the Bench asked.

    The AG responded that in MS Bhati v. National Insurance Co Ltd, it was held that a judgment will bind the court though same has been referred to larger bench. Therefore Sabarimala judgment is binding, he said.

    Arguments by Senior Advocate R Venkataramani

    Today, the Court also heard Senior Advocate R Venkataramani, appearing on behalf of college teachers who are made respondents in a writ petition. He stated that the right to freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions on the ground of public order, morality and health.

    "I am not belittling what is said in Quran. I am nobody to say that. It is a holy book and people who want to practice the holy book, they must have all the freedom to do that. But when we enter into a public space, which is a qualified public space; School is a qualified public place, every public space will have its own dimensions and therefore public order will be relevant. It cannot be seen in a generic or abstract state," he argued.

    It was further contended that if the State takes some measures for ensuring order and disciple, the Courts should not hold strict scrutiny. "Governance is a very heavy subject. Only when there is a breach the courts will interfere. Court will not preach how to govern...Whichever way public order, is perceived, whichever way it is brought in operation, unless it is malafide, court will not interfere," he said.

    It may be noted that the petitioners have relied on a judgment of the Constitutional Court of South Africa, in KwaZulu-Natal and Others v Pillay, which upheld the right of a Hindu girl from South India to wear a nose ring to school.

    Opposing the same, Venkataramani submitted that the judgment was not based on the dimension of public order and it was mostly a discussion on cultural right. "To borrow judgment of foreign jurisdiction and to apply here will be problematic. If wearing of hijab is important for someone, wearing of tilak on forehead could be important for someone else."

    Arguments by Senior Advocate S. Naganand

    Naganand appeared for govt PU college, its principal and lecturers. He argued that this is an entirely girls school. Girls students of the petitioners were not in the habit of wearing hijab previously. However, occasionally, some parents of Muslim girls used to enquire if wearing of hijab is permissible. Further, the parents of Muslim girl would request the teachers to ensure that their daughters are not involved in singing , dancing, music and other extracurricular activities.

    "I don't know if they mean that Muslim girls should not sing with their classmates. If national anthem is sung, should they not sing? Is it against Islam? If a devotional songs is taught about mother India, should they not sing? What is this that they say here? None of this has got to do with religion. There is a fine distinction between religion and culture. There is distinction between essential religious practice and cultural practise essential to religion," he argued.

    It was his case that wearing of headscarf is not Essential Religious Practice and was a cultural practice. He added that relaxations and deviations will be always there from religious injunctions in a pragmatic manner.

    "Praying five times a day which is prescribed in Islam for mohammedan, we respect it. Suppose I am riding a scooter and there is a mosque and there is an azaan should I stop in the middle of the road and start praying. If a policemen stops me, can I say you are stopping me from practising my religion", he asked.

    He further submitted :

    "If a mosque is using loudspeaker for azaan at 5 AM in the morning, I might say, I respect your religion, but I don't want to be woken up. In the course of practicing your religion if you are coming in the way of others, where does the line lay?"

    Naganand further stated that the prayers sought by the petitioners are unusual, inasmuch as they seek an inquiry against the College for violating guidelines and taking an hostile approach. However, factual details of the college are not given.

    Case so far

    The Advocate General previously argued: (i) wearing of hijab does not fall within the essential religious practise of Islam; (ii) right to wear hijab cannot be traced to freedom of expression under Article 19(1)(a) of the Constitution; (iii) Government Order dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act.
    Yesterday, the Court had sought a clarification from the State regarding its stand on banning hijab. More details here:
    The State contended that petitioners have not shown hijab to be an essential practice. Nevertheless, it assured the Court that authorities will not act beyond the scope of the Court's interim order restraining students from wearing any sort of religious clothes in classrooms.

    'Govt Is Sensitive' : Advocate General Assures HC That Authorities Won't Act Beyond Interim Order In Hijab Case

    Senior Advocate Devadatt Kamat appearing for the petitioners argued that wearing Hijab is an essential religious practice under Islam, and suspension of the same, even for a few hours during school, undermines the community's faith and violates their fundamental rights under Article 19 and 25 of the Constitution.

    Kamat heavily relied on a judgment of the Constitutional Court of South Africa, in KwaZulu-Natal and Others v Pillay, which upheld the right of a Hindu girl from South India to wear a nose ring to school.

    Kamat also underscored that the declaration made by the State government that wearing of headscarf is not protected by Article 25 of the Constitution was "totally erroneous'. It was also submitted that the conduct of the State government in delegating to the College Development Committee (CDC) to decide whether to allow headscarfs or not is 'totally illegal'.
    Prof Ravivarma Kumar, Senior Advocate, appearing on behalf of the petitioners argued that the state is discriminating against Muslim girls, solely on the basis of their religion. He highlighted that the Government Order dated February 5 targets wearing of hijab whereas other religious symbols are not taken into account. This leads to hostile discrimination violating Article 15 of the Constitution.
    The Bench also heard Senior Advocate Yusuf Muchhala for the petitioners, who argued on the aspect of right to freedom of religion, contending that it is not necessary that a practice should be an 'essential religious practice' for attracting Article 25(1).

    "When the right is claimed under Article 25(1) and 19(1)(a) of the Constitution, what matters is the entertainment of a conscientious belief by individual. When right is claimed as a matter of conscience, it is not necessary to delve into the question whether it is an integral part of religion," he said.

    During the course of hearing, an oral request for mediation in the matter was made. Responding, the High Court had observed that mediation was possible only if both the petitioners and the respondents (State and College Development Committees) agree.
    The matter was first listed before a single bench of Justice Krishna S. Dixit, which referred the petitions to larger bench observing that "questions of seminal importance" are involved.

    The Full Bench, after hearing both sides passed an interim order restraining the students from wearing any sort of religious clothes in classrooms, regardless of their faith, till disposal of the matter.

    The Petitioners are students of Govt PU college. They claim that they were wearing head scarf, as part of their religious and cultural practice, over their uniform. However, the teachers and principal of the Respondent-college insisted that they remove their heads scarf.

    It is alleged that they are made to stand out of the class and this 'discrimination' is continuing since December 2021. They claim that a representation was made to the District Education Officer however, on January 1, the Principal called a meeting of the College Development Committee, which declared that petitioners should not wear headscarf. Following this, the petitioners were not allowed to attend classes and made to sit outside, which led to protests.
    An important question before the Court in this case is whether wearing of hijab is part of essential religious practise of Islam and whether State interference in such matters is warranted. The court is also called to consider whether wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution and whether restriction can be levied only under Article 19(2).

    It is the petitioner's case that the right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Article 14,19 and 25 of the Constitution.

    Hijab Ban : How Can Girls Going To School Wearing Head Scarf Be Public Order Issue? Petitioners Argue In Karnataka High Court

    Meanwhile, the State has claimed that it's aim is not to interfere with the religious beliefs of any community but, is only concerned to maintain uniformity, discipline and public order in educational institutions.

    "The feeling of oneness, fraternity and brotherhood shall be promoted within an institution. In educational institutions, students should not be allowed to wear identifiable religious symbols or dress code catering to their religious beliefs and faith. Allowing this practice would lead to a student acquiring a distinctive, identifiable feature which is not conducive for the development of the child and academic environment," it submitted in a written reply.

    (Edited and compiled by Akshita Saxena)

    Live Updates of the hearing available here.

    Live Stream of the hearing available here:


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