Tuesday, March 28, 2023

Hijab controversy: Karnataka High Court adjourns hearing to Tuesday

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The Karnataka High Court on Monday adjourned hearing in the petitions related to wearing of Hijab by Muslim women in educational institutions to Tuesday.

The full Bench comprising Chief Justice Ritu Raj Awasthi, Justice J.M. Khazi and Justice Krishna M. Dixit on Monday hrad submission made by Senior Advocate Devadatt Kamat, representing the petitioners.

He submitted that the judgments so cited by the Court earlier do not even deal with Article 25. He contended that the judgments cited in the matter of headscarf were a fatal error. While it was said that various judgments were cited from High Court and the Supreme Court, it was to be noted that they were actually are not applicable.

The Counsel submitted that there were well known religions in India, which did not believe in God, but believed in spiritual well-being, which were actually doctrine of belief that provided with ceremonies and also the matters of food and dress (Jains). Hence, the dress was also a part of the same and this was held by the Supreme Court only.

The Counsel stated that Rati Lal Gandhi judgment also provided that no outside authority has right to say what can be a part of religion.

The State is an outside authority and hence, it cannot provide with the disturbance that whether headscarf should be allowed or banned. He submits that personally a lawyer/advocate/judges might not agree with wearing of scarfs as their personal belief, but the judges are not to put their opinion.

It has to be noted in accordance to the belief of religion and within the ambit of Article 25.

The Counsel further mentioned the judgment of Bijoy Emanuel, wherein judge held, “As a judge, I might not agree to the fact that why a student is not singing national anthem but as per the Constitution, it is their right as they are not causing hindrances in any way.”

The Counsel submitted that the head scarfs are been worn since years and it not the like the students have started wearing shawls to schools or all of a sudden doing something to create hindrances.

It is contended college development committee has no statutory basis as it is formed by a circular. And since, circulars are not legally sanctioned, it is to be noted that all religions are to be treated equally and respected.

The Counsel further requested for having a look at Page 86, wherein it was mentioned in regards of the Article 25 that clearly provides with freedom of practicing any religion. It said that a law providing for social welfare and reform can put up restriction for Article 25. But, in the present case, there is no such law. Hence, the decision held in regards of not wearing head scarf is completely unconstitutional.

The Bench asked the Counsel that evaluate Bijoy Emanuel Judgment with this Hijab controversy by explaining the essential religious practice under Article 25. Furthermore, bench asked to explain if essential religious practice is absolute or not.

The Counsel submitted that under Article 25(2), the state can evaluate and restrict social welfare and reform which means that other than core religious activities, other aspects can be evaluated. The core activities come from 25(1) and not from 25(2).
The bench asked the Counsel that can 25(1) and 25(2) be read separately or not. The Counsel submits, that as per various judgments, it can be read considering other aspects like financial, economic, political, etc., but not the core religious activity which herein the Hijab by a way is a core religious activity.
The Counsel submits that Court has mentioned restrictions for Article 25 as public order, morality and health, other provisions, social welfare and reform. The breach issues of Article 25 are to be dealt in that direction only. The counsel submits that the SC has time and again held that personal views and opinions are irrelevant if beliefs are said to be of religious core activity. Hence, even in Bijoy Emanual judgment upheld the decision that freely to practice and propagate religion is the basic fundamental right. 
The Counsel even submits the Shayara Bano Judgment which he states that clearly shows that if Islamic culture of religion shows any practice as necessary, the Courts are duty bound to upheld the same. Since at that time, triple talaq was not mentioned in Quran, that is why it was struck down. In the present case, the same is a core religious activity. The Bench questioned the Counsel that is everything mentioned in Quran very essential practice or not. The Counsel submits that he wouldn’t go into that area but since today a religious practice is involved and since it is an important and essential practice, it has to be considered as Islam can not be anti-Quran. The Counsel submits the 4 sources of Islamic law wherein the holy Quran is the primary source. This clearly means that other sources are considered but the Islam cannot be anti-Quran and it is Quran that has to be considered. Also, the Counsel states that what is held to be bad in Quran, cannot be good in shariyat and in that sense, what is bad in theology, it is bad in law as well.
Hence, the Hijab, which is practice of religion under Article 25 is to be considered in that angle only. Even the core religious activity must not be considered as herein the fundamental right of the few Hijab wearers is not violating the fundamental rights of others. Hence, the state is duty bound to ensure that freedom of practice and conciseness of religion.
The Counsel further states that whole delegation to college committee to decide on the matter that whether to wear Hijab or not is a total violation of state’s responsibility and illegal. The Counsel submits that the MLA committee is a extra-legal committee which is outside the paradigm which is a complete mockery to the Right to practice religion. The Fundamental freedom is violated and a complete illegal thing. While the Court states that Hijab is not into the question but the uniform is, the Counsel states that the domain of state is entered into as the committee is deciding a matter which is not even in their power. While the State only gives power to decide the school uniform, the committee has extended their power and violating the fundamental rights by their direction in a way of circular. The SC has time and again stated that State is duty bound to ensure that one gets a fair chance to possess their religion.

The Counsel submitted that one of the considerations was public order, as per the plain reading. Because, if not, it wouldn’t stand out in judicial scrutiny. Looked at in either angle, the same has to go off in any side. The Counsel prayed that a positive mandate must be given to wear Hijab of same colour, as it was not a matter of fashion, but a pride and mandate of religion.

The Counsel asked if the Court wanted to continue the matter tomorrow or wanted the same to continue for today, as it was like 10-15 minutes wrap up argument.

Senior Advocate Yusuf, also representing one of the petitioner, requested to make certain submissions, but were interrupted by the Counsel for asking for 10 minutes to wrap up the argument.

The Court stated that if the request made by the Counsel for the Petitioner (couldn’t acknowledge the request due to regional issue) was made from the Election Commission or authorities holding elections, requests can be considered, else this cannot be considered now.

The Court thereby stated that they were only by the end, noting the names of the petitioners and not allowing for more submissions at the moment.

Also, no respondents were considered for the moment. The Court stated that the matter will be heard again tomorrow at 2:30 pm, wherein all the petitioners, whose name the Court noted, along with the intervention petitioners, will be heard. One of the intervention petitioners was Senior Advocate Ravi Verma Kumar.

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