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Petitioners should prove that wearing Hijab is fundamental and not an option: Karnataka AG tells High Court

Advocate General of Karnataka, Prabhuling K. Navadgi, on Tuesday told the High Court that the onus was on the petitioners to prove that wearing of Hijab was a fundamental aspect and not an option or practice.

A Full Bench of the High Court, led by Chief Justice Ritu Raj Awasthi and also comprising Justice J.M. Khazi and Justice Krishna M. Dixit, were hearing the petitions filed by Muslim girls, against the Karnataka government’s decision to restrain wearing of Hijab in educational institutions.

The Counsel submitted that he wished to bring on record Qureshi’s judgement (Volume 1: Page 60, Paragraph 13) relating to slaughter of cow.

The Bench stated that the case was more related to the law of pleadings, to which the Counsel of respondents agreed.

The Counsel stated that on the second issue, that it is obligatory in practice, he states that it is for petitioners to demonstrate in front of the Court that Hijab is obligatory in nature as claimed to be stated in Quran.

A reading in Quran must show the same. Since in the above case, it was observed that Quran gives it an option of sacrifice of cow, thus it was supported by the Court in the case.

Similarly here, it was for the petitioners to prove the same beyond reasonable doubt that it was the fundamental aspect and not an option or practice.

He said it was stated by the petitioners that Article 19(1)(a) gives them right to wear any dress as per freedom of expression. He submits that if that could have been the meaning, for those who don’t even wish to wear the same, it could have been also appreciated. He submits that it(Article 19(1)(a)) is mutually destructive article to article 25(a). There cannot be both the articles being applied in present case. The Counsel states that under Article 19(1)(a) if someone wishes to wear Hijab, it is not a problem. But it has to seen in regards of Article 19(2), wherein it can be restricted as public order considering the institutional discipline where it can be at educational, hospitals, etc.

The bench asked, after RC Cooper case and bank nationalisation case, it is a stand that rights are complementary, to which the Counsel agreed. The Counsel submits that he wishes to point of that how restriction should be construed. He submits that in Dr. Khare’s case, the point of reasonableness shall be considered and also the manner in which the imposition has been authorized. It is important that the test of reasonableness has to be tested before any of the restrictions are imposed. The Counsel submits that the preamble itself states that a secular outlook should be given. The restriction is not that the Hijab should not be worn in the campus, it is more that the same should not be worn in classroom because it has to been seen beyond the religion. The third aspect he wishes to state what whether the discontinuation changes the religion or not. He states that in the present context, in France, there is total prohibition of Hijab at public place. But nobody can say that there is no Islamic religion in that country. Even in Turkey. The Court states that it also depends upon the constitutional policy of country to country, they are more liberal than India. The Counsel states that as an example of France, it is to be noted, that there is no prohibition in our country. But it is to be noted that Islamic people are there also, here also. And both can follow religion and Hijab is not a necessary. The Counsel also mentions Ayodhya case, in relation to whether Namaz is to be done at a particular place. In that particular case, it was clearly answered that there was no power in the state to conquer any Mosque, but there was also no fixed place for the Namaz. The Counsel states that with all responsibility, they are representing the holy book of Quran in an English translation by way of 2 books.

  1. The Holy Quran by Abdullah Yusuf Ali, Lahore Pakistan (referred by SC in Shayara Bano’s Case wherein it was consented by all parties including All India Muslim Board)
  2. The Holy Quran English Translation by MarmadhukayPickthall (referred by Justice Chandrachud in Shah Banocase)
    He submits that he shall restrict himself from marking relevant portions and won’t be reading the complete texts. He states that by the way of these book, he wishes to through light on Sura 24 in Book 1 at Page No. 904; and also, Sura 33 which talks about long gown and not Hijab. The Counsel states that whatever portion the petitioners have talked about, also does not talk about Hijab. The petitioners have backed about Quran.com (as referred by Adv. Devadatt Kamat). The Counsel for Petitioner Subhash Jha states that the word for Hijab is Khimar. The Counsel for the respondent submits that the ultimate claim is to allow the headgear or hijab. He states that if anyone wants to wear, that is 19(1)(a) but if someone approaches the Court to say that we all want to wear, then does it not derogates or infringes the right of those who do not wish to. He questions the Court that will it not be compulsion if judicial approval is given. The Court disagrees the same with Hindu mangalsutra. The Counsel states that he shall take an example of cloth only and not the mangalsutra, he states that as soon as judicial sanctioned is given, it becomes obligatory and compulsory. If any of muslim women does not wear, it will be lowering down their choice, image and belief. He submits that Hijab is to be on liberty and not compulsion. There has to be choice and not judicial declaration. He states that in Sabrimala Judgment, as per the law today, but the Court interrupted and said that since the judgment is referred to the larger bench, the same cannot be stated as it is a pending issue. Adv. Kaleeswaram submitted that the review petition in Sabrimala Judgment was deferred and not dismissed. The Counsel for respondent mentioned the case of MS Bhati vs National Insurance Company Ltd., paragraph 5 and 10, wherein it is held that the law made by larger bench, even though pending, the same has to be considered as it will amount to indiscipline.

The Counsel again puts forward the issue of dignity. He states that women cannot be subjected to any compulsion of any dress. For the same, he reads Paragraph 221 by Justice Chandrachud in Sabrimala Judgment. He states that the petitioners are fighting to make it compulsion but this is against the dignity as the same is only about choice, freedom and dignity. He submits that it cannot be made compulsory at any time. He reads Justice Chandrachud words in Puttaswamy Judgment, Volume 4, Paragraph 299 relating to Right to privacy. He submits that no religion is discriminated. He states that petitioners like Mohan who represent private, unaided or minority institutions, should not be intervening as the choice is left to them to choose for the same. The state is not making compulsions for them. Furthermore, he states that those who represent women, the dignity of women should be kept in mind. He states that he heard a song which says, “naamuh jhuka ke jiyo, naa sar jhuka ke jiyo.” and thus, this has to be always kept in mind while taking the decision.

The Court directed all the petitioners and respondents to prepare written submissions so that decision can be done as early as possible.

Furthermore, Senior Advocate R. Venkataramani for respondent 12 and 13 (teachers of Biology and Physics), submitted that appearing for teachers, he understands that discipline and order is important. As a teacher he wouldn’t appreciate the disturbances like a religion is higher than the other. He would love to have free mind and transfer a free mind. Any part of state/school to bring in certain discipline, as long as its neutrality, the State must not interfere. He submits that school is place where minds come together with only purpose to learn. And thus, the state is obligatory to follow due process of law. And as long nothing is breached, the Court must not hold in strict scrutiny. The Counsel submitted that Court shall interfere only when breaches are done, not to tell how to govern the discipline. He states that Court cannot look into the matter as how the public order must be governed. He states that as long as fundamental requirement is concerned, mere deficiency in the procedure adopted will not lead to nullify for the need of decision taken. The scope herein is narrowly tailored. He states that as to Article 25, it is more of an expression when talks about freedom and not compulsion. He states the legitimacy does nomean that state does not have power to interfere on the issue. He states he fight on the social media. He states that our law is full of foreign laws as well and we cannot blind fold ourselves on the same. He states that as a teacher he would not continue for it and requests 2-3 days for written submission.

Senior Advocate Naganada S.S. for respondents 5 to 7 submitted that the prayer shall be thrown light at which are completely non-acceptable. He stated that entire prayer is based on the order and its applicability. But the same does not state any factual position regarding when they joined the college, when were they stop, or others. They did not even mention that their parents did sign the undertaking in regards to abiding by the uniforms. He submits that this is a wrong contention and issue being raised without substantial proof. He states that the prayers are misconceived. Para 7 talks about factual information to which the Court is brought about. He states that girls were not in a practice of wearing Hijab earlier. However, some parents used to enquire whether the wearing was allowed in class and all. Some parents were even enquiring about that if the daughters are involved in singing, dancing or anything. He contends that these things have nothing to do with religion. He questions whether Islam does not allow girls to sing is even singing patriotic song or national anthem also against their religion. He mentions that wearing Hijab is a cultural practice rather than religious practice. He given an example of daughter in laws at Rajasthan wearing ghunghat in front of father in laws and states that all this is a cultural practice and not the religious practice. He also mentions that even 5 times a day namaz is prescribed. But there is no compulsion. For this, he gives an example stating that if he’s here at Court, he cannot just say that he’s leaving for namaz or during riding a scooter, he cannot stop the vehicle in between and say he has to do namaz. He states essential part of religion is different from what is being practiced. He mentions that if there is mosque and it plays the prayer on loudspeaker, it might infringe the right of others who do not wish to argue.

The matter is again listed for tomorrow at 2:30 pm.

The Court also disposed of the petition relating to minority and private schools/institutions after the counsel for the state mentioned that they are not interfering the order onto them.

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