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No Fundamental Right To Wear Hijab In Classroom Defying Uniform Rule : Karnataka AG Tells Supreme Court [Day 9]

LIVELAW NEWS NETWORK
21 Sep 2022 10:36 AM GMT
No Fundamental Right To Wear Hijab In Classroom Defying Uniform Rule : Karnataka AG Tells Supreme Court [Day 9]
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The Supreme Court today continued hearing the petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim students in educational institutions. Today was the ninth day of hearing by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. The Petitioners' side had concluded its arguments yesterday and the Bench is now hearing...

The Supreme Court today continued hearing the petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim students in educational institutions.

Today was the ninth day of hearing by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. The Petitioners' side had concluded its arguments yesterday and the Bench is now hearing State counsels.

Karnataka Advocate General Prabhuling Navadgi argued that not every religious practice is protected under Article 25 of the Constitution.

He referred to the Supreme Court judgments declaring that triple talaq and cow slaughter are not essential religious practises in Islam, to argue that Petitioners must show that hijab is an essential religious practice, to claim protection under Article 25.

He submitted that if it is held that there is no fundamental right to wear hijab under Article 25, what remains before the Court is the reasonableness of the restriction of uniform in school.

AG said that the State only intends to inculcate discipline in students by regulating uniform, and any restrictive effect on rights under Article 19 is "incidental" and it cannot be a ground to invalidate the law.

"We have not prohibited hijab outside, there is no restriction on wearing in school transport. There is no restriction even in school campus. It is only in classroom," he added.

So far as right to privacy under Article 21 is concerned, the AG submitted that Right to privacy is a "developing jurisprudence" and even as per the Puttaswamy judgment, it cannot be exercised in all zones.

The AG also denied the allegations that State has targeted a particular community. He said that to the contrary, State runs several welfare programs for minority groups.

"The action of State in issuing the circular must be viewed from the language used in it. All it says is follow Rule 11 (of Karnataka Education Rules). So, it cannot be impugned on other grounds. In the absence of challenge of Rule 11, the school code will prevail…It is a case of school versus students. Not Govt vs Students… relationship between school and students is quasi-parental."

Read arguments by Solicitor General Tushar Mehta here.

COURTROOM EXCHANGE

Not everything said in Quran is mandatory; Test of ERP necessary: Karnataka AG

At the outset today, Justice Gupta asked that even if it is presumed that wearing hijab is not an Essential Religious Practice, then what kind of practice would it be?

He pointed that as per the Petitioner, everything stated in Quran is the word of God and is mandatory.

The AG responded that there is no pleading it is fundamental to religion. Further, even assuming that wearing of hijab is a religious practice ordained in Quran, however, not every mundane activity related to religion can be an essential religious practice.

"If we are to accept whatever said in Quran to be essential, it will defeat the tests of essentiality. One test is whether it will change the nature of religion. Safest test. If every aspect of Quran, with great reverence, may be religious, but not essential.

On plain reading of text, it (hijab) is not mandatory. We have large number of mothers and sisters who do not wear hijab. We have countries like France or Turkey where hijab is prohibited. Woman not wearing hijab does not become less Muslim."

Justice Gupta agreed that there is a fair share of Muslim women who do not wear hijab.

"I know someone in Pakistan,a judge of Lahore High Court, he used to visit India, he has a wife and two daughters, I have never seen those little girls wearing hijab at least in India…In Punjab, there are not many Muslim families. When I visited UP or Patna, I have interacted with Muslim families and have seen women not wearing hijab," the Judge shared from his experiences.

The AG then reiterated that everything said in Quran may not be essential. He cited the Mohd Hanifa Quresh case which held that cow slaughter on Bakrid is not an essential practice.

Justice Gupta pointed that cow slaughter was held to be not mandatory because there is an option given for goat slaughter.

The AG next cited Shayra Bano case, where the concept of triple talaq was tested and was held to be a non-essential practice. "Every sura contained in Quran need not be obligatory," he said.

He also referred to the Khursheed Ahmad Khan case where a Muslim, man having more than one wife, had challenged the restriction on polygamous persons to contest local elections. The Supreme Court, while upholding the restriction, had held that polygamy is not an essential practice in Islam.

"The unanimity, the judicial trend seems to be, even while interpreting Islamic text, unless it is shown to be obligatory, you can't get the protection under Article 25," the AG said.

He then referred to Ismail Farooqi case, which challenged acquisition of Babri Masjid land, where it was held that offering of namaz in mosque is not an essential or integral practice.

5 tests to determine ERP: Karnataka AG

Karnataka AG Navadgi submitted that there are five pointers to determine whether a religious practice is essential or not.

First, the practice must be fundamental to religion and from time immemorial.

Second, not following the practice will change in altering the nature of religion. "For example, several women don't wear hijab. Several countries like France or Turkey have banned hijab, but Islam has not ceased," he said.

Third, practice must be compelling. "The argument made was that if the practice is not followed, you will be answerable to God after life. It is too general a test."

Fourth, the punishment must be prescribed in the text itself.

Fifth, the practice must be essential to religion and not essentially religious.

Shirur Mutt case does not bar the test of ERP: Karnataka AG

Senior Advocate Dushyant Dave appearing for the Petitioners argued that the Supreme Court in Shirur Mutt case rejected the test of 'essential religious practice'. He submitted that any religious practice is protected under Article 25 of the Constitution.

However, the AG submitted that the Shirur Mutt does not say that court cannot go into essential religious practice question.

"There is a distinction between religious matters and social political and economic matters associated with religious matter which State can regulate. State cannot say for example what pooja to be performed, but can regulate administration...State can regulate secular activities related with religion but not religion itself. Shirur Mutt says you find the answers in religion itself, it did not say you cannot go to Court."

He continued, "An impression was given to your lordships that Shirur Mutt said protect every religious practice. But a close reading of it shows the concept of essential religious practise originated in Shirur Mutt case and was repeated in Durgah committee case…There is no conflict between Shirur Mutt and Durgah committee."

Justice Gupta pointed that in Shirur Mutt, the Top Court rejected the Attorney General's essential religious practice argument.

However, the AG showed certain portions from the judgment to submit that protecting every aspect of religion becomes practically impossible and therefore, the theory of essential religious practice was evolved.

High Court should not have gone into test of ERP: Court

Yesterday, Justice Dhulia had orally remarked that the Karnataka High Court should not have gone into the question of essential religious practice.

Addressing this, the AG submitted that the High Court had go into this issue because the petitioners themselves had approached the Court saying it is an essential tenet.

He added that what is protected under Article 25 is essential religious activity without which the religion itself cannot survive. "If left alone, everything which stems out of religion will get protection under Article 25 and it will lead to a situation which is extremely difficult," the AG said.

The AG further said that apart from one paragraph in the writ petitions, nothing was said to show that hijab is an essential religious practice. "And the prayer was to declare it as essential practice… Once such a declaration is made, it will bind every member of Islam community. They should have been more responsible," he remarked.

Justice Dhulia asked why the State did not ask the High Court to avoid the issue of essential religious practice.

"The State could have said don't take to essential religious practice…Your argument was it was not an essential religious practice. You should have also taken the responsibility," Justice Dhulia told the AG.

The AG then informed the Bench that there was hesitation among them to argue on this aspect and that he had instructed the law officers not to carry the holy book to court, as it is a revered book.

"They cited a translation of Quran which was downloaded from a website. At that time, the Court wanted to know which version to rely upon. Then I referred to Shah Bano and Shayra Bano cases and cited the version referred in those judgments with the approval of all."

GO aims to inculcate discipline, Restriction of Article 19 "incidental": Karnataka AG

The Petitioners have argued that right to wear hijab is part of fundamental right to freedom of expression under Article 19 of the Constitution.

The AG however submitted that the impugned GO stems from Rule 11 of the Karnataka Education Rules, which prescribes uniform. It does not deal with any of the rights under Article 19.

He argued that unless the Act is directed against fundamental right to freedom of expression, it cannot be invalidated on that ground.

"The only Rule by which they are being prevented from wearing hijab is Rule 11…The law laid down in Bachan Singh case is that if a legislation is directed against a particular subject, and it incidentally entrenches upon another right, it cannot be invalidated on that ground."

Justice Gupta here remarked that the effect of the legislation has to be seen.

The AG responded, "Is it a remote effect or proximate effect? The Karnataka Education Act is intended to administration of educational institution. It is our object to bring in discipline. And incidentally, if there is a violation of Article 19, it cannot be invalidated.

If in a class room a student does not wear uniform and the teacher asks him to go back, can he come to Court and say there is no public order or national security ground to impose restrictions under 19(2)?

…I need not justify my action going to public order. Because the intention of my legislation is not to curb freedom of speech, my intention is to bring discipline. Every time we go back to 19(2), it will be practically impossible."

Justice Gupta however expressed difficulty in following this line of argument and said that they will think about it.

Can Article 19 rights be curbed through a Circular? Court

The State has argued that the impugned GO is to maintain discipline and for better administration of institutions.

In this light, Justice Dhulia asked, "Now you are putting restriction, such restriction can only done be by "law". 19(2) can only be by law. Is the circular a "law"?"

The AG said that the restriction is by Rule 11 of the Karnataka Education Rules, which has not been challenged by the Petitioners. "It is the stature power for the school to prescribe the dress. Not the circular. Rule is the source of power," he clarified.

Does wearing headscarf go against unity and equality? Court

The bench pointed that as per the Petitioners, there should be no uniform.

"It is pre-university. Some schools don't have uniform. And the circular, it uses the word "unity and equality". What is this?" Justice Dhulia asked.

The AG responded,

"The words used in circular is, if there is no uniform prescribed, wear something which goes along with unity and equality and which does not affect law and order. Perhaps the draftsman intended, please wear something dignified. Law and order means, please don't dress scantily."

Justice Dhulia then asked the State if wearing of headscarf goes against unity and equality?

The AG responded,

"Hijab does not come here…The idea of uniform, it brings all students in all plane, irrespective of economic background. Second objective, is what Article 51A(j) says, you rise above your religious identity to become part of one group."

Justice Gupta pointed that Article 51A is a Fundamental Duty and as such, is not enforceable. "But you are bringing in as part of the Act."

The AG said that the State is striving to make fundamental duties part of governance.

No right to wear dress as an expression in defiance of uniform rule: Karnataka AG

The AG submitted that majority judgments on Article 19(a) are on the line of communication.

"Concept of dress came from NALSA judgment. What was the context of NALSA? It was transgender rights. Transgender persons wanted to dress in a particular way to express themselves and in that context, dress was held to be 19(1)(a) right. But there is no judgment on right to wear dress as an expression in a classroom in defiance of uniform rule."

He added that right to expression is bilateral. "You are expressing to someone. Wearing a hijab, what are you expressing, there is no pleading."

AG cited the Maneka Gandhi case where it was held since she did not say why she wanted to travel abroad, impounding of passport will not violate Article 19. In this light, he submitted,

"Right to wear dress as part of expression can't be readily given at the mere asking. They have to establish what is the expression they want to convey and to whom they want to convey. They say they wear hijab as Islam mandates. That is no expression."

Justice Dhulia pointed that the Petitioners had asked on what basis the right to wear hijab in public places can be curbed. "Sibal had raised this point, the girl can express herself in hijab in a mall, but when she enters the school, she can't."

The AG responded that the right cannot be absolute.

"We have not prohibited hijab outside, there is no restriction on wearing in school transport. There is no restriction even in school campus. It is only in classroom.

When it was asserted militantly that I want to wear hijab, and there was opposition, what do I do as a school principal. My concern was to run the school, to bring the children together without animosity. The Govt order was under these considerations."

He added, "School has regulations which say it cannot be done. It does not mean fundamental right has been taken away. It can be restricted. Constitution itself provides it can be restricted."

Justice Dhulia then asked which reasonable restriction was applicable in the present case.

"Public order, morality or health. Under which head? Is it affecting somebody's health? Somebody's morality?"

AG said this is why he had cited the Bachan Singh case which held that if the dominant objective is something, the ancillary effect need not be looked.

"Right to wear a hijab in a public space, is it a 19(1)(a) right or 21 right? If 21 is the right, it can be restricted as per procedure known to law."

"Article 19(1) gives the right…Preamble gives the right…" Justice Dhulia observed.

"I am governed by the Education Act. It is a complete code. If the rules and regulations say I have to wear the particular uniform… Right to wear a hijab or whatever dress in a school in defiance of uniform rule is not a fundamental right," AG responded.

Public order element attracted to present case: Karnataka AG

The AG submitted that though the ground of public order may look distant, in the facts of this case, it did have a public order element.

"It was not a case of single student wanting to wear hijab. There were groups of students, banging the gates of children, within intimidating slogans, and it did have a ripple effect, this became a symbol of enforcement of religious faith.

It is very nice for petitioners to say, what happens if I wear hijab. That was not the ground reality. It has never happened in Karnataka. There were some groups which actively associated with this. These are in the chargesheet."

Right to Privacy developing; can't be exercised in all zones: Karnataka AG

The Petitioners have argued that the State can't enter into a barter system with its citizens, asking them to surrender their right to privacy in exchange for right to education.

Responding to this, the AG asked whether the right to wear dress as part of privacy right can be exercised anywhere?

"It is not so simple. The carte blanche proposition cannot be accepted… the right to privacy of individuals is conditioned by regulations...subject to rights of others to lead an orderly life..."

Earlier, Justice Gupta had asked the Petitioners if right to dress includes right to undress.

Addressing this query, the AG said,

"You have right to dress, but its not absolute in all places…There cannot be a general right to wear dress. It varies from case to case… Your fundamental right is circumscribed by regulations…"

He stated that as per Puttaswamy judgment, right to privacy can be limited on grounds of compelling public interest. "This right to wear hijab in defiance of school rules, whether it is a fundamental right, it needs to be examined, not on the basis of a general statement," AG said.

Background

A batch of 23 petitions were listed before the bench. Some of them are writ petitions filed directly before the Supreme Court seeking the right to wear hijab for Muslim girl students. Some others are special leave petitions which challenge the judgment of the Karnataka High Court dated March 15 which upheld the Government Order dated 05.02.2022, which effectively prohibited Petitioners, and other such female Muslim students from wearing the headscarf in their Pre-University Colleges.

A Full Bench of the High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice JM Khazi had held that wearing of hijab by women was not an essential religious practice of Islam. The Bench further held the prescription of uniform dress code in educational institutions was not violative of the fundamental rights of the petitioners.

Case Title: Aishat Shifa versus State of Karnataka SLP(c) 5236/2022 and connected cases.

Reports of previous hearings:

Question Of Essential Religious Practice Does Not Arise If Hijab Is Shown To Be Bonafide Practice In Muslim Women: Sr Adv Rajeev Dhavan Tells Supreme Court [Day-5]

Hijab Ban Forces Muslim Girls Out Of Schools, Violates Concept Of Fraternity : Sr Adv Huzefa Ahmadi To Supreme Court [Day 5]

Hijab Verdict Forces Muslim Girls To Choose Between Education & Religion : Aditya Sondhi To Supreme Court [Day 5]

Hijab Case- State Can't Say "We Will Give You Education, If You Surrender Your Right To Privacy": Adv Shoeb Alam Tells Supreme Court [Day 6]

Constitution Is A Living Document; Hijab Can Be Given Same Protection Given To Sikh Turbans and Kirpans: Sr. Adv Colin Gonsalves To Supreme Court [Day 6]

'Right To Wear Hijab Is A Cultural Right Protected Under Article 29, Issue Requires Consideration Of A Larger Bench': Kapil Sibal To Supreme Court [Day 6]

Hijab Case-School Students Not Part of Regimented Forces Requiring Strict Disciplinary Measures: Dushyant Dave To Supreme Court [Day 8]

Hijab Case - Karnataka High Court Should Not Have Gone Into Essential Religious Practice Test : Justice Sudhanshu Dhulia [Day 8]

Hijab Not Essential Practice, Students Made Part Of Conspiracy To Create Social Unrest: SG Tushar Mehta To SC [Day 8]

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