Constitution Is A Living Document; Hijab Can Be Given Same Protection Given To Sikh Turbans and Kirpans: Sr. Adv Colin Gonsalves To Supreme Court [Read Written Submissions]

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 today heard Senior Advocates Dr Colin Gonsalves, Kapil Sibal, Jayna Kothari, Abdul Majeed Dhar, Meenakshi Arora and Advocate Shoeb Alam.Senior Advocate Dr Colin Gonsalves argued that the Karnataka High Court ignored international precedents on the subject and wrongly held that if hijab is not shown to be essential in Islam, there is no right. He submitted that several observations made by the High Court hurt religious sentiments of the community and gives wrong impression about Islam to other religions.He argued that Hijab is essential to the conscience of several Muslim girls and must be given same protection as Sikh Turbans and kirpans under the Indian Constitution. High Court ignored long standing practice of wearing hijab: Gonsalves As per Gonsalves, the High Court went wrong in holding that Petitioners failed to show that they were wearing hijab to school, prior to the ban. "Millions of girls in India are following from time memorial. No pleading at all is necessary," he said. Justice Gupta told Gonsalves that the Court has to decide each case based on the case set up. "The case was it was an essential religious practice. The High Court has gone into that fact. The question of pleading was on whether these girls were wearing hijab prior to the controversy." Gonsalves responded that the question to be asked is not whether few girls were wearing hijab or not. "The question is if Hijab is a practice of Islam, and of course it is. Millions of girls wear it. They feel it essential. It may not be essential in the sense you are excommunicated if you don't follow. But the fact is it is followed widely. The question is if the practice is genuinely or conscientiously held as part of profession of religion and not whether it is essential or not. This is the test. That's all." Gonsalves said that the High Court judgment is from the perception of the majority community, where the minority view is seen very partially. "It is a majoritarian judgment. It does not have the Constitutional independence. There are startling paragraphs, hurting paragraphs in the judgment." High Court judgment hurts religious sentiments of Muslims: Gonsalves While stating that the High Court judgment is a majoritarian one, Gonsalves referred to the observations that Hijab is not a religious practice and not a cultural practice, and that one cannot have scientific temper if you wear hijab. Gonsalves also referred to High Court's observations that insistence on wearing hijab is against emancipation of women. "Hurtful statement! If I wear hijab, I can't have scientific temper or emancipation of women? Linking hijab with sectarianism, wearing hijab with divisive lines…so the hijab divides, hijab could breed indiscipline, social unrest? This is the language of judgment. This is not a judgment which should pass the muster. The High Court's judgment is not respectful of the minority community. It was a one-sided approach. Judgment should be set aside and sent back to a different bench of the High Court. High Court says fundamental rights of citizen will not apply in a qualified public space and only derivative rights will apply. Judges are evolving a new principle of constitutional jurisprudence. Judge makes an analogy with prisons. He says individual fundamental rights you can't assert because you are in a qualified public space. I don't see where this comes from. It is not there in Indian jurisprudence. It is a new theory. If a student could be asked to remove a hijab, then a lawyer can be told to remove hijab. This theory of qualified public space is very dangerous." High Court judgment ignores cultural diversity and right to freedom of conscience: Gonsalves Gonsalves said that they had raised Supreme Court judgments on diversity. However, the High Court discarded those arguments saying "hollowed rhetoric and platitude". "So, diversity is gone. It makes fun of diversity. Says no diversity in a qualified public space… Then freedom of conscience is brushed aside. What evidence you want on freedom of conscience?" Justice Dhulia pointed that the High Court said freedom of religion and freedom of conscience are two differently thing. Gonsalves responded, "High Court says merely saying wearing of hijab is part of conscience and removing it is offensive is not sufficient. Why is it not sufficient? It was not a case of 10 children. It was affecting the whole state." He added, "What will the other students think when police come, when Principal stops hijab wearing girls...It sends a message that there is something wrong about the religion of Islam that it needs Policing. The wrong ...

Constitution Is A Living Document; Hijab Can Be Given Same Protection Given To Sikh Turbans and Kirpans: Sr. Adv Colin Gonsalves To Supreme Court [Read Written Submissions]

Akshita Saxena

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