17 March 2022 11:49 AM GMT
A 66- year old social activist has moved the Supreme Court of India against the Karnataka High Court's Judgment which held that Hijab is not an essential religious practice of Islam and upheld the ban on wearing headscarves in schools and colleges.The petitioner, a hijab wearing woman herself has submitted that she wasn't given a chance to be heard by the High Court thereby violating her...
A 66- year old social activist has moved the Supreme Court of India against the Karnataka High Court's Judgment which held that Hijab is not an essential religious practice of Islam and upheld the ban on wearing headscarves in schools and colleges.
The petitioner, a hijab wearing woman herself has submitted that she wasn't given a chance to be heard by the High Court thereby violating her right arising of principle of orality. Further, her written submissions were also not considered or adverted to anywhere.
The special leave petition has been filed through Advocates Talha Abdul Rahman, Mohammed Afeef, Basava Prasad Kunale, M. Shaz Khan and Harsh Vardhan Kediya.
While graphically setting out the various forms of clothings worn, the petitioner has submitted that till today no direction has been issued by any school or authority that hijab or any other clothing protecting modesty is inconsistent with prescribed uniform.
The petitioner has argued that the High Court did not consider the impact of the gamut of rights involved in the present case and that Article 25 is subject only 'to public order, morality and health and to other provisions of this part' and the taking away of the right to wear Hijab does not fall in any other of the three categories.
The petitioner has submitted that the emphasis in Article 25 is on "his belief" and therefore, it requires consideration from the point of view of believer's sincere belief, and it is only when the belief is shown to conflict with public order, morality or health that the test of essential religious practice would apply.
"In the present case, the teenage girls covering themselves modestly while going to receive education pose no threat to public order. In fact, the threat to law and order is manufactured by hecklers who are to be controlled by the State. The impugned Government Order would affect young girls minds forever," the plea states
Declined to Apply Tests Applicable to Restrictions on Fundamental Rights:
The petitioner has argued that the High Court has declined to apply the tests applicable to restrictions on the fundamental right to freedom of speech and expression, and fundamental right of privacy without reasons, and further erroneously observed that the rights of students are comparable to those of prisoners.
Further, the Court erroneously held that the petitions do not involve the right to the freedom of speech and expression or the right to privacy.
"The High Court treats "dress code" or uniform prescribed as as not involving the issue of breach of fundamental right, without appreciating no such uniform has yet been prescribed that takes away the right to wear hijab, and it was the "biter" or the "description portion" of the impugned Government Order dated 05.02.2022 that was being challenged as constraining the power to prescribe a dress code and taking away the margin of appreciation that college authorities may have," the plea states.
Principle of Orality: The Petitioner has argued that even after noting that several parties including the petitioner had filed intervention applications, the High Court did not implead them and did not allow them to urge their arguments and submissions.
Burden of Proof on the State & Not the Petitioner: According to the petitioner the burden of proof is upon the State to establish that there is no violation of Articles 19 and 21. It was for the State to demonstrate by cogent material (i.e. pleading and evidence) that the restriction on hijab or removal of a piece of clothing of woman that she considers as guarding her modesty was necessary in public interest and justifiable under Articles 19 and 21.
Argument on breach of public order not considered: The Petitioner has argued that even for Article 25 restriction, the State Government had lead or shown no material on imminent threat to "public order". Despite being argued and urged, the High Court did not consider the distinction between "public order" and "law and order".
Government Order aggrandizes existing educational backwardness amongst Muslims: While referring to the Sachar Committee Report regarding difficulties faced by hijab wearing Muslim women in finding jobs, the Petitioner has submitted that the High Court has failed to appreciate that the impugned Government Order proliferates discrimination and seeks to compel young muslim girls to choose between their religion and education at an institution regulated under the law.
Harm Principle not invoked: The petitioner has submitted that the High Court has erred in not appreciating that unlike other practices, the practice of wearing hijab does not cause any harm to anyone. In that sense, wearing of hijab also satisfies the de minimis principle which the Court has invoked for nose-studs to distinguish the South African judgment.
Manifestly Arbitrary nature of the Government Order: According to the petitioner, the High Court did not appreciate that the actions of the respondents in issuing the impugned Government Order is manifestly arbitrary as per the formulation in Shayara Bano v. Union of India (2017).
It has been argued that there is no adequate determining principle vis-a-vis the object sought to be achieved. In other words, the question of "how is accommodating the headscarf more detrimental than other forms of religious expression such as bindi/ kumkuma, cross etc. to the concept of uniform', remains unanswered by the State or any of the Respondents.
According to the petitioner, if the object is to erase religious symbols, the State has not adequately answered as to why is one religious symbol being restricted while others are being allowed. Such a net result, is manifestly arbitrary and hence violative of Article 14 of the Constitution.
Misappreciation of the prescriptions of the religion: The petitioner has argued that the High Court's erroneous reliance on the passages from the Holy Quran is without fully appreciating the nuances of religion and that it is directed towards a believer where even the "desirable" is considered mandatory by the believer.
Further, it appears that the High Court has erroneously applied the test of "common sense" by reference to Ayat 242, without appreciating that it refers to "common sense" of the believer.
According to the petitioner, the High Court while itself adverting to the ayats from the Holy Quran, failed to appreciate that the Holy Quran unequivocally requires women to cover their bosoms and yet upheld the ban.
Thereafter, while specifically noting that Islam mandates covering of bosom and requires modesty in dress: covering hair, the High Court has erroneously interpreted that wearing the hijab was only recommendatory.