Hijab Case-School Students Not Part of Regimented Forces Requiring Strict Disciplinary Measures: Dushyant Dave To Supreme Court

The Petitioners' side today concluded arguments in the ongoing case before Supreme Court against Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim students in educational institutions.A bench of Justices Hemant Gupta and Sudhanshu Dhulia heard the Petitioners for eight days. Senior Advocate Dushyant Dave closed the arguments today.Dave argued that the Karnataka High Court's judgment is wholly unsustainable and the impugned circular is unconstitutional, illegal and issued for legal malice and violates Articles 14, 19, 21 and 25. He submitted that the High Court erred in testing the legality of wearing hijab in public places on the touchstone of 'essential religious practice'. He added that hijab adds to the dignity of Muslim women, is a protected right under Article 19 and 21 of the Constitution, and does not disturb public order or hurt religious sentiments of others, so as to attract reasonable restrictions.Read Dave's previous arguments here.The hearing is underway. Solicitor General Tushar Mehta is arguing for the Respondent-State. Live updates here.COURTROOM EXCHANGE Test is not essential religious practice, but religious practice: Dave It is Dave's argument that the test is not that of essential religious practice, but religious practice. In this regard, he relied heavily on Tilkayat Shri Govindlalji v. State of Rajasthan. In that case, the Court wondered how it could decide what is an essential religious practice if there are two sets of beliefs within a community. For instance, "if in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question?" The Constitution bench observed that in such cases, the usual test 'whether the practice is regarded as essential by the community' would "break down". "Everybody looks at Lord Almighty in different ways. Those who to Lord Ayyappa in Kerala, they go in black dress...look at our Kanwariyas, today they walk with music vans and dancing to Lord Shiva...everybody has right to enjoy religious freedom in the most personalized way…You don't hurt anyone, that is the limitation to religious right," Dave argued. Yesterday, Justice Dhulia had asked Dave whether the Shirur Mutt case, which rejected the argument of essential religious practice test, was in the context of Article 25(2)(a). Addressing the query, Dave responded that 'Religion' was defined for the first time in Shirur Mutt case and thus, the definition applies both to 25(1) and 25(2). "Therefore, the Court's rejection of essential religious argument must apply with equal force to Article 25(1)," he said. Dave then cited the Constitution bench judgment in Sardar Syedna Taher Saifuddin v. State of Bombay, which struck down Bombay Prevention of Excommunication Act, 1949 on the ground of violating Article 25, 26. In this case, Justice Iyyengar held that essential part of a religious includes practices which are regarded by the community as a part of its religion. "In the face of the language used, no distinction could be drawn between beliefs that were basic to a religion, or religious practices that were considered to be essential by a religious sect, on the one hand, and on the other beliefs and practices that did not form the core of .. a religion or of the practices of that religion. The phraseology employed cut across and effaced these distinctions," it was held therein. At this juncture, Justice Gupta asked if Justice Iyyengar was in majority. Dave informed that he was and added that concurring opinion of a judge in majority judgment is binding. "What is this leading to?" Justice Dhulia then asked. Dave responded, "That essential religious practice was never a ground for judicial pronouncements. Essential practice was used in the context of making a distinction between religious and secular acts." He mentioned that Justice Chandrachud and Justice Nariman had also taken note of the confusion created by essential religious practice in the Indian Young Lawyers Association case (Sabarimala case). Article 25 contemplates religious tolerance: Dave Dave argued that Article 25 is an article of tolerance. In this regard, he referred to the Bijoe Emmanuel case where it was held that "Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country's Constitution." Dave said that the Bijoe Emmanuel decision is also relevant insofar as it interprets the Kerala Education Act, which is pari materia with the Karnataka Education Act. "If the two circulars are to be so...

Hijab Case-School Students Not Part of Regimented Forces Requiring Strict Disciplinary Measures: Dushyant Dave To Supreme Court

LIVELAW NEWS NETWORK

Tags