Friday, December 2, 2022

Hijab case arguments: Supreme Court questions petitioner how far can Constituent Assembly Debates be relied on to examine Article 25

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The Supreme Court today heard a batch of appeals challenging a verdict that upheld the ban on wearing hijab in government schools and colleges by the Karnataka High Court.

During the session, the Supreme Court asked the petitioners challenging the Hijab ban as to how far can constituent assembly debates be relied, while examining Article 25 of the Indian Constitution.

The query was put forward by the Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia hearing the case. 

The bench was very interested to know from petitioner’s counsel Senior Advocate Dushyant Dave, as to how far would constituent assembly debates help in “understanding the present Constitution.”

Justice Gupta asked as to what extent the  constituent assembly debates are important to interpret this provision.

“We have to look at the language of the law. To what extent are Constituent Assembly Debates relevant to interpret the current day Constitution,” the Bench said.

Dave replied that CAD reflects the intention and will of those who drafted the Constitution.

He said, the Constitution was not a changing document. It was they who drafted it. Preamble and basic structure are part of the Constitution.

The Bench asked the petitioner counsel to submit precedents to show how far CAD can guide the court in interpreting the current case. 

On March 15, the Karnataka High Court had upheld a Government Order, which empowered the development committees of government colleges in the state to ban hijab (headscarves), worn by Muslim girl students in college campus.

The Muslim petitioners from various colleges in Karnataka moved the High Court after they were not allowed to attend classes wearing hijab.

A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S. Dixit and J.M. Khazi had held that:

-1. Hijab is not an integral part of the Muslims. 

-2. On the restriction in Uniform Requirement is a reasonable restriction on the fundamental right to Freedom of Expression under Article 19(1)(a);

-3. The government will always be the sovereign head and has the power to pass the GO; no case is made out for its invalidation.

One of the pleas before the top court has argued that the High Court “failed in noting the fact that the Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution.”

It has also said that wearing Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.

In the last hearing, Senior Advocate Kapil Sibal said before the Supreme Court that stepping inside the school gate does not make a student forego her fundamental rights.

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