If I Wear A Headscarf, Whose Fundamental Rights Am I Violating?Sr. Adv. Devadatt Kamat In Hijab Case Hearings [Day 3]

The Supreme Court, on Thursday, 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. The arguments were continued by Senior Advocate Devadatt Kamat from the last hearing on the matter. International PrecedentsIn the last hearings of the matter, Senior Advocate Devadatt Kamat appearing for the petitioners had argued that the Government Order, banning Hijabs in educational institutions was not "innocuous", as argued by the State, but violated students' fundamental rights under Article 19, 21 and 25 of the Constitution. To support his arguments, he had heavily relied upon a judgment of the Constitutional Court of South Africa, KwaZulu-Natal and Others v Pillay, pertaining to the right of a Hindu girl from South India to wear a nose ring. In the hearings, the bench had asked him how parallels could be drawn between India and South Africa and what provisions existed in the South African Constitution regarding the issue. In today's hearings, Sr. Adv. Kamat commenced his arguments by stating–"Your lordships were right, South Africa is much more diverse, and the scope of protection is wider. Justice Dhulia had pointed out decisions in Continental Courts, it was one judgment in Austria...there was head scarf ban targeted at one community which was held unconstitutional...Students belonging to Islamic faith said it was part of their decision. The judgement stated– Selective ban which forbids Islamic girls from wearing headscarf may have adverse effect on the inclusion of female students concerned and making access to education more difficult for Muslim girls and marginalizes them..."Article 25 (1) : Restrictions on basis of Public order, Morality and health and other Fundamental RightsReferring to citizens' freedom free profession, practice and propagation of religion, Sr. Adv. Kamat stated that Article 25 had two parts– first, 25(1) and second, 25(2). He stated that Article 25(1) has three sets of restrictions in it, namely, public order, morality and health and other provisions of fundamental rights chapter. He submitted that the State had not justified the restriction of Hijab in school either on public order or morality or health. Further, the State's argument that a head scarf would offend other people could not be a reason to ban Hijab. Therefore, he said that the impugned Government Order could not be a valid restriction for the purposes of first part of Article 25.At this juncture, Justice Dhulia reminded him that this argument under Article 25 would be available to him if he was arguing that wearing hijab was an essential religious practice for Islam but in the last hearings, he had stated that he would not be using this line of argumentation. To this, Sr. Adv. Kamat stated–"No, I will make it clear. This right comes from Article 19 and also Article 25. Every religious practice may not be essential, but that does not mean that State can keep restricting it as long as it does not fall foul of public order, morality or health. For example, when I wear a Namam, Senior Advocate K Parasaran, he is a father like figure for us, he wears Namam...Does it affect discipline or decorum in Court?"Justice Gupta interjected and stated that dress code in court could not be compared with the instant case. He said that–"Last day, Mr.Dhawan mentioned pagdi. It might be an essential dress. In Rajasthan people wear pagdi. In Gujarat too."However, Sr. Adv. Kamat reiterated his point and stated–"I can wear head gear, kara, as part of my religious belief. It may not be a core religious practice. But as long as it does not affect public order, health or morality, it can be allowed...Your lordships know the Anand Margis case, where Tandav dance was prohibited."Justice Gupta was not convinced by the same and stated that wearing a hijab in street may not offend anyone, however, wearing it in a school might as the question was about what kind of public order the school wanted to maintain.Heckler's Veto Principle: Public Order v. Free Religious ExpressionSr. Adv. Kamat then introduced in the submissions the "Heckler's Veto". For context, a heckler's veto is the suppression of speech by the government, because of the possibility of a violent reaction by hecklers. It is the government that vetoes the speech, because of the reaction of the heckler. The first amendment of the United States holds Heckler's Veto as unconstitutional. In his arguments today, Sr. Adv. Kamat attempted to establish that the Indian Courts had applied Heckler's veto in their decisions. He stated that–"School can't take that ground of public order. If I wear a head gear and someone gets offended and makes an issue and shouts slogans, police can't say I can't wear it. That will be hecklers veto. It is on this basis that the ban was imposed. Last...

If I Wear A Headscarf, Whose Fundamental Rights Am I Violating?Sr. Adv. Devadatt Kamat In Hijab Case Hearings [Day 3]

Padmakshi Sharma

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