Hijab Case : Must Resist Efforts To Create Unitary Culture, Idea Of Unity In Diversity Arises From Composite Culture, Argues Salman Khurshid

A Division Bench of the Supreme Court on Monday continued to hear the challenge against a Government Order (GO) passed by the State of Karnataka that effectively allowed college development committees to place a ban on the hijab in government colleges. A batch of 23 petitions was filed in this connection, some of which were writ petitions placed directly before the Supreme Court, while others were appeals by special leave preferred against the judgement of the Karnataka High Court upholding the impugned order. The Bench comprised Justices Hemant Gupta and Sudhanshu Dhulia. Senior Advocate Yusuf Muchhala argued extensively about the interplay between the freedom of speech and expression in Article 19(1)(a), the right to privacy read into the right to life and liberty under Article 21, and the freedom of conscience and free profession, practice and propagation of religion under Article 25. Next, he highlighted the complementarity of the two allied, but distinct concepts encapsulated in Article 25, namely, the freedom of conscience, and the freedom of religion. He also contended that since Article 26, which conferred on religious denominations, certain fundamental rights, was not invoked, the doctrine of essential religious practice would not be pressed into service with respect to the practices observed by individuals. He also questioned the competence of the Court to venture into interpreting religious scriptures, claiming that according to the precepts of judicial wisdom, the High Court of Karnataka should have refrained from touching a particular field in which it had no expertise. The Court also heard Senior Advocate Salman Khurshid, who argued at length that the wearing of the hijab was ordained by the Holy Quran and as such, was obligatory. His contention was that the Karnataka High Court had misinterpreted the nature of the injunction, claiming it to be merely "recommendatory", when it was, in fact, a diktat revealed in the word of God. He also argued that the wearing of the hijab would be protected under the Constitution as a cultural practice, referring to Article 29(1) and Sub-clause (f) of Article 51A. The matter is listed to be heard again on September 14. Petitioner's Arguments Status of Education Among Muslim Girls Senior Advocate Yusuf Muchhala prefaced his arguments by offering a conspectus on the status of education amount Muslim girls, basis his submissions on studies conducted by the National University of Education, Planning and Administration (NUEPA), which he said already formed a part of government records. He told the Court that Muslim girls were already on a disadvantaged footing because of, inter alia, their early withdrawal from school so as to not be 'unsuitable' for marriage, the disparity between boys and girls and the differential treatment meted out to the girls, and the hostility faced by them from religious and cultural majorities. The non-recognition of social and cultural practices by the school administration, teachers and students, Mr. Muchhala argued, was a roadblock to providing Muslim girls access to education. There was a need for inclusion, awareness, and sensitivity in the school ambience, he concluded. Cultural Differences Versus Religious Differences Drawing an analogy with cultural practices, which were generally tolerated, and accepted, Mr. Muchhala argued: "Merely for wearing a piece of cloth over your head, education cannot be denied. Wearing a turban is not objected to. If you tolerate that, you are tolerating diversity. If you're tolerating diversity on the grounds of cultural differences, then why will such diversity not be tolerated on grounds of religion? Because culture is the basis of religion." Violation of Fundamental Rights under Arts 19(1)(a), 21, and 25 Mr. Muchhala, on a conjoined reading of Articles 19(1)(a), 21, and 25, asserted that none of these rights, namely, that of free speech, the right to personal dignity, and privacy, and the freedom of conscience and the right to practice religion, have all been violated. The High Court also failed to take into consideration the doctrine of proportionality, he claimed. With respect to the violation of the freedom of speech and expression, and how it encompassed personal appearance and choice of dressing, Mr. Muchhala relied on National Legal Services Authority (NALSA) v. Union of India [AIR 2014 SC 1863]. Quoting from this Supreme Court judgement and two judgements rendered by American Courts, Mr. Muchhala argued that the hijab was a "necessary symbol of identity" of a practising Muslim girl. Mr. Muchhala relied on Justice K.S. Puttaswamy (Retd.) v. Union of India [AIR 2017 SC 4161] to support his arguments relating to the privacy and dignity of individuals. He explained that decisional autonomy was an important element of privacy, which in turn was an essential aspect of dignity. He explained: "Women who wear hijabs should not be looked upon as caricatures. They should be looked upon...

Hijab Case : Must Resist Efforts To Create Unitary Culture, Idea Of Unity In Diversity Arises From Composite Culture, Argues Salman Khurshid

Awstika Das

Tags