After a marathon hearing over a period of 10 days, the Supreme Court today reserved its judgment on a batch of 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 heard Solicitor General Tushar Mehta, Karnataka Advocate General Prabhuling Navadgi and Addl Solicitor General KM Nataraj for the State. Senior Advocates R Venkataramani, Dama Seshadri Naidu and V Mohana appeared for college teachers. The Petitioners' side had concluded its arguments on Tuesday.
Making rejoinder submissions in the matter today, Senior Advocates Dushyant Dave and Huzefa Ahmadi today submitted that the arguments of Solicitor General regarding involvement of Popular Front of India are wholly irrelevant and are made to cause prejudice. They argued that no material has been shown on record regarding this.
The Petitioners argued that unlike triple talaq and cow sacrifice, Hijab is mentioned in Quran and it is the farz of Muslim women to retain the same. Further, it was contended that in absence of State showing that hijab affects the fundamental rights of others, any restriction on wearing the same affects the freedom of conscience and "behavioural privacy" of Muslim women. It also hampers their education prospects, it was argued.
Allegations about PFI conspiracy false: Dave
The Solicitor General had alleged that till the year 2021, no girl student was wearing any hijab. However, an agitation was started by the Popular Front of India to create 'social unrest' and that the students were made part of this conspiracy.
Dave said he "regrets" such allegations have been imputed sans any pleadings in that regard.
He took the bench through the impugned circular of the Karnataka government, to point out that there is no mention of any PFI activity and rather, the circular cites observance of religious practices as a "hindrance" to unity and equality.
Senior Advocate Huzefa Ahmadi also submitted that argument of PFI was not raised before High Court. "They can't rely on documents not on record. It is an argument introduced to create a prejudice."
Senior Advocate Devadatt Kamat said that though State made a "grandiose statement" that till 2021 nobody wore hijab, there is no pleading to that context.
Justice Gupta agreed that in one of the writ petitions, there is a mention that the Petitioner was wearing hijab. "And there is no counter-affidavit controverting this fact," Kamat added.
Impugned GO contrary to Education Dept's guidelines: Dave
Dave mentioned that the Department of Education had issued guidelines by for academic year 2021-2022, as per which uniform is not compulsory. Thus, the impugned GO dated February 5 could not supersede the said guidelines.
"There is no question of subsequent circular superseding… The present circular does not advert to these guidelines," he said.
"It (guidelines) was part of the writ document before the High Court. Solicitor General said it was an unsubstantiated document. But it is substantiated by their own submission before the High Court. How can you disown your own document? I respectfully say it is not right for law officers to say this document is unsubstantiated when it is a govt document."
However, when the Bench inquired from ASG Nataraj about these guidelines, he responded that guidelines do not confer any right. "They do not affect statutory instructions."
"Once it is issued for information for all, you can't say it is untenable," Justice Gupta told the ASG.
In this context, Advocate Shoeb Alam also contended that definition of law under Article 19(2) is narrow and that a mere 'circular' cannot take away the citizens' fundamental rights (Pharmacy Council of India v. Rajeev College of Pharmacy).
Article 19(2) means statutory law, he asserted.
Is hijab essential?
Justice Dhulia remarked that issue is not uniform or whether students were wearing it. "Issue is whether you are permitting hijab or not."
Dave submitted that for some people it is an essential practice, some people are more religious, some are more tolerant…
"Some people may wear it (hijab). Some people are more religious. It is an individual choice. That is why essential religious practice test was rejected long back. It was brought by backdoor," he said.
Justice Dhulia pointed that it was petitioner's own case that Hijab is essential. "Look at their prayer, they were seeking a declaration that it is an essential practice."
"High Court is to look at the law, even if there is a prayer, the High Court has to go by the Constitution. Even if there is a concession, there can't be a concession against the Constitution. There can't be an estoppel against a Constitutional provision even if a prayer is made.
Court acts as a sentinel on the qui vive, the ultimate guardian of the fundamental rights of the citizens. As the sentinel on the qui vive, lordships must allow our prayers."
Hijab mentioned in Quran unlike triple talaq and cow sacrifice: Khurshid
The Petitioners have argued that hijab (covering head) is mentioned in Quran and whatever is written in Quran is farz.
Karnataka AG Prabhuling Navadgi had however 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 had also said that in countries like France or Turkey where hijab is prohibited, however, Muslim women there don't cease to be Muslims. Hence, hijab is not essential.
Senior Advocate Salman Khurshid submitted that so far as question of cow sacrifice is concerned, that there is nothing in Quran that a particular animal has to be sacrificed. Similarly, in Shayra Bano case, the Supreme Court found that Quran does not permit triple talaq.
"Then why it was argued that triple talaq was an established practice," Justice Gupta asked.
"Some people argued, I was an amicus in that case. Judgment finds its core in Justice Joseph's judgment which say there is nothing in Quran justifying triple talaq," Khurshid responded.
So far as France and Turkey are concerned, he submitted that the ideologies of those countries are quite different from positive secularism adopted by India.
"In France, you can't even show a cross. I don't know if wearing of turban has been tested finally in France. General proposition in France, anything religious is not to be exhibited in public.
In Mexico, the President of Mexico could not go to church in public as they believe there has to be strict separation between state and religion. So, it varies from society to society… Essential practice test was developed to balance the rights, to remove things which have grown on religion, so that religion does not suffer."
Test of ERP not lone, Freedom of conscience & right to privacy also in issue: Khurshid
Khurshid submitted that the instant case is not limited merely to the issue of determination of essential practice. "The issue is also of conscience, of culture, of privacy…"
He referred to the Puttaswamy judgment which identified different aspects of privacy, including bodily privacy, spatial privacy, behavioural privacy (which postulates a measure of privacy even while acting in public).
"Issue here is I use my behavioural privacy to wear something, if that exercise of right violates the competing right of another person, then it has to be balanced. But if does not, then this behavioural privacy has to be permitted…The choice of appearance and apparel need not necessarily flow from Article 25, but also the judgment of privacy."
Constitutional duty to protect composite culture and diversity: Khurshid
Khurshid submitted that Article 51A of the Constitution provides for composite culture, humanity, diversity. "Something can't be picked from 51A to say you have to become unitary."
He also argued that There has to be high scrutiny of the State interest. "It is assumed that there is State interest. But there is no material given for scrutiny."
Wearing hijab does not violate fundamental rights of other religions: Ahmadi
Solicitor General had claimed that seeing hijab clad Muslim women in schools, the other community started coming with saffron shawls. Thus, the Government had to do introduce the impugned circular in order to maintain discipline and public order.
Addressing this issue, Ahmadi said,
"They have not pointed out which fundamental right of other students has been violated due to ladies wearing hijab. I can understand if there were competing fundamental rights. They have not shown which fundamental right of the other section of students has been violated. It is only when rights are deprived, administrative orders can be passed.
Nothing has been shown why should anyone get provoked when a girl wears hijab. The suggestion that there was public order issue is puerile. It amounts to yielding to pressure groups and bullying which is hardly a sign of good governance.
The argument was Article 25 is subject to Article 14. For that, you have to show someone else's fundamental rights are violated by someone wearing hijab.
When it is a fundamental right to wear hijab, the question of someone instigating pales into insignificance. Secularism is used a ruse to defend the circular, which though facially neutral, is targeting Muslim students."
In this context, Kamat submitted, "Let's take Solicitor's saffron example in reverse. A Brahmin boy wears a namam in a Muslim locality. Some students take objection and they start wearing green dress. Will the State then order don't wear namam?
At the first instance of some disturbance, you cannot raise issue of public order. Public order has to be interpreted in a manner in aid of fundamental rights."
Karnataka GO targets Muslim community: Ahmadi
Ahmadi pointed that the circular does not say no religious symbols are allowed, rather it speaks only of head scarf.
"No, it is only in the preamble of the circular. The order part does not say about hijab," Justice Gupta said.
However, Ahmadi responded that the Circular has to be read as a whole.
"Circular does not say, you can't openly wear a cross or rudraksh. I can understand if circular says on the opening of school, we will not have religious functions. The circular is only targeting head scarf and only one community wears it.
If a circular is issued saying no one can wear turbans, we can know it is targeting Sikhs. It will be facially neutral but targeting one group. Circular has to be read as a whole, its purport has to be read as a whole and its effect has to be seen."
Test of 'Dominant Intent' not applicable if Fundamental Rights violated: Ahmadi
Karnataka AG had cited the Bachan Singh case which held that if the dominant objective is something, the ancillary effect need not be looked. He submitted 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.
Refuting this, Ahmadi submitted,
"The argument of "pith and substance" is misconceived. It is a doctrine to apply for legislative entries. You can't apply it when fundamental rights are infringed. Same for the test of dominant intention. These tests do not apply to fundamental rights, where even in incidental infringement will be bad."
Navadgi interrupted to state that Bachan Singh case brings a "paradigm shift" that these tests can be used only for fundamental rights.
However, Ahmadi responded, "Bachan Singh ultimately holds there is no infraction. It does not hold pith and substance test has to be used for fundamental rights."
Hijab ban affecting Muslim girls' education prospects: Ahmadi
Ahmadi submitted that if someone seeks to stop the classes in the name of observing religious practice, that would be a good ground to prohibit that observance. However, as far as hijab is concerned, no such case has been shown by the Respondents.
"Uniformity is confused as a fundamental duty. The judgments of this court emphasize on diversity. It is not shown hijab is impairing education or discipline.
It is strange that the State which should be concerned about educating girls, is concerned more about discipline and is enforcing this which can lead to denying education to girls.
We have a slogan "Beti bachao, beti padhao". Should it not be the priority of the state to ensure education of the girls rather than a misplaced priority on discipline which undermines autonomy and eventually results in denial of education?"
He cited some documents from RTI which suggest that the Karnataka State Commission for Protection of Child Rights 15 had written to the State on March, stating that Hijab ban in educational intuitions will result in "drop outs".
"What does ultimately the State gain if these students are not emancipated? If these girls get a good education, tomorrow they can take a decision on how to dress. Education itself is empowering. This stopping can result in they going back to other education which is not secular. Don't stop this at the threshold."
Ahmadi also referred to several letters of students who say that they are not allowed to enter or write exams.
However, as AG Navadgi raised objection, Court said, "We will go by established practice no fresh documents in rejoinder."
Karnataka High Court inversed burden of proof: Kamat
Kamat said that the High Court inversed the test by asking the Petitioners to show their rights instead of examining whether the restriction imposed by the State is valid.
Justice Gupta pointed that it was the Petitioners who had approached the Court claiming a right. "You went to the Court against the Govt Order."
(Usually, there is presumption of constitutionality in favour of State action and the initial burden is on the party approaching the Court against it.)
However, Kamat argued that if one keeps a photo of Krishna in his pocket and the State says that it is not permissible, then Court should ask why is the restriction and not whether there is a right to keep the photo.
"State has to cross the threshold (of valid restriction)," he said.
He added that the only judgment which deal with Article 25 and 19 in the context of school discipline is Bijoe Emmanuel. However, the High Court said it was in a different context.
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: