Wednesday, September 28, 2022

Supreme Court reserves verdict in Hijab Matter after hearing counsels for both appellants and respondents

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The Supreme Court today reserved its verdict in a batch of appeals that challenged the verdict, which upheld the government order by the State of Karnataka, empowering government colleges in the State to ban the Muslim students on wearing hijab in colleges premises.

The Bench of Justice Hemant Gupta and  Justice Sudhanshu Dhulia, who for the past 10 days were hearing the counsels for appellants and respondents, finally finished hearing of all the parties today.

The bench thanked everyone present during the hearing of the matter and said now, “our homework starts”.

The Supreme Court was currently dealing with the challenge against the Karnataka High Court decision upholding the Karnataka government order.

A bunch of petitioners, who were Muslim girl students from various colleges in Karnataka, had approached the High Court after they were denied permission to attend classes on account of wearing hijab.

The appellants before the Supreme Court said that this was failure of the state accommodation to a student to exercise her right under Articles 19 and 21 of the Constitution.

The appellants also added that if an attire disrupted public order, it could be restricted and it was the responsibility of the State to ensure that an atmosphere was created, where one could exercise their fundamental rights.

When the question arose regarding the issue of Essential Religious Practice Test (ERP) as to whether hijab was essential to Islam, the appellants said that the only issue was whether the restriction was a valid Constitutional restriction.

Some appellants said that everything in the Quran was mandatory and nothing was directory, as so hijab was essential to Islam.

They added that the order discriminated on the grounds of both religion and sex.

The state government, on the other hand, maintained that the order was “religion-neutral” and did not target any particular community.

The interesting fact that court came across was that female Muslim students challenging the hijab ban never wore hijab to educational institutions until 2021, but suddenly remembered after a movement was designed to create an agitation by the Popular Front of India on the social media.

The government’s submission was that an ERP was only one that could be traced back to the origin of a religion and was mandatory.

The appellants rebuttal said that the government order targeting the headscarf could not be seen as religion-neutral.

Senior Advocate Huzefa Ahmadi, representing one of the petitioners, asked, “Suppose you were to come out with a circular saying you cannot wear a turban, can you say this does not target Sikhs?”

Senior Advocate Dushyant Dave had pointed out that the circular which mentioned the reference to Popular Front of India was not relevant, but the entire media picked it up.

Senior Advocate Dushyant Dave also appeared for the petitioners. Additional Solicitor General (ASG) K.M. Nataraj represented the State of Karnataka.

Some excerpts of the arguments, which took place during today’s hearing on the matter, are as follows:  

Mentioning the Karnataka Government’s Circular of February 5, Dave said, “I want to show something interesting. However it has been brought to the notice of dept that some students have been carrying out “religious observances” which has become a hindrance to unity and equality”.

He said yesterday, Justice Joseph’s bench had raised concerns about hate speech media. Media is being used by political organizations. The Solicitor General mentioned PFI and the media headlines were about that.

J Dhulia: This circular of Feb 5, this say uniform can be prescribed. And there was an earlier circular saying no uniform? So subsequently GO will supersede?

Dave: The earlier circular (of no uniform) are guidelines by department of education for 2021-2022. There is no question of subsequent circular superseding. It does not say it is superseding.

J Dhulia:
The 5th GO says if there is no uniform prescribed, it says dress going along with unity and equality, meaning no headscarf.

Bench asks Karnataka Govt about the earlier guidelines saying no uniform.

Justice Gupta asks ASG Nataraj :
We want to have a clarity.

ASG: I will say legal angle. The guidelines do not confer any right. They do not affect statutory instructions.

J Gupta: Once it is issued for information for all, you can’t say it is untenable.

ASG: Even then there is a statutory notice issued later.

J Gupta: Mr.Dave is it your stand there was no uniform before 2021-22.

Dave: Our case is that hijab was never objected to our case is it is a voluntary practice what other side is arguing.

J Gupta: We are on a different issue on uniform.

Dave: Uniform was not compulsory.

J Gupta: We want to know as a question of fact whether students were wearing uniform?

J Dhulia: Issue is not uniform or whether students were wearing it. Issue is whether you are permitting hijab or not.

Dave: The problem is the State is wishing it (guidelines saying no uniform). It is not for fun that you have issued it.

J Dhulia: It is issued under Rule 11. Both (circular of Feb 5 and the earlier guideline) have Rule 11 as source.

Dave :
There can’t be an estoppel against a Constitutional provision even if a prayer is made. Court acts as a sentinel on the qui vive, the ultimate guardian of the fundamental rights of the citizens. As the sentinel on the qui vive, lordships must allow our prayers.

Senior Adv Salman Khurshid now making rejoinder-
One argument was raised was about Qureshi judgment on cow sacrifice. There is nothing in Quran that a particular animal has to be sacrificed.

J Gupta: There is an option given of animal. camel, goat etc.

Khurshid: France and Turkey were mentioned. In France, you can’t even show a cross. I don’t know if wearing of turban has been tested finally in France. General proposition in France, anything religious is not to be exhibited in public.

In Mexico, the President of Mexico could not go to church in public as they believe there has to be strict separation between state and religion. So it varies from society to society.

In Shayra Bano case, Justice Kurian Joseph’s judgment clearly says Quran does not permit triple talaq. He says, he has gone through all verses of Quran and that there is no provision for triple talaq.

J Gupta : Then why it was argued that triple talaq was an established practice.

Khurshid: Some people argued, I was an amicus in that case. Judgment finds its core in Justice Joseph’s judgment which say there is nothing in Quran justifying triple talaq.

The choice of appearance and apparel need not necessarily flow from Article 25, but also the judgment of privacy.
There has to be high scrutiny of the State interest. It is assumed that there is State interest. But there is no material given for scrutiny.

Khurshid: One of the petitioners include a Sikh woman.

J Gupta: We are not dealing with that.

Khurshid: They may also face.

J Gupta :
We are not dealing with that. We will deal with the Sikh woman when the issue arises.

J Dhulia :
You withdraw it, file it at someother time.

Khurshid : The idea is…

J Dhulia :
The idea is if we limit the problem it will be easier to solve.

J Gupta :
We will give liberty to move HC, you are not a student of Karnataka, just want to be in limelight.

Bench directs order in Sikh woman’s petition:

“Petitioner is resident of Haryana… there is no parity with the issues raised in the bunch of petitions. Dismissed as withdrawn with liberty to raise issue before appropriate forum.”

Huzefa Ahmadi making rejoinder:
Argument of PFI was not raised before High Court. Justice Dhulai : HC deals with it. Ahmadi : In one line. They have forfeited their right to file counter. They can’t say orally. Attempt was made to give documents in sealed cover.

Ahmadi on circular: The contention was that after girls started wearing hijab, other students started wearing something else, and they had to bring the circular.

They have not pointed out which fundamental right of other students has been violated due to ladies wearing hijab.
I can understand if there were competing fundamental rights.

They have not shown which fundamental right of the other section of students has been violated. It is only when rights are deprived, administrative orders can be passed.

Secularism is used a ruse to defend the circular, which though facially neutral, is targeting Muslim students. I can understand if the circular says no religious symbol is allowed. The circular speaks only of head scarf.

J Gupta: No, it is only in the preamble of the circular. The order part does not say about Hijab.

Ahmadi: Circular has to be read as a whole. The AG says we have to look at only at the circular and not the background. Even the High Court says that the reasons in the circular do not appear to have been justified.

The argument of “pith and substance” is misconceived. It is a doctrine to apply for legislative entries. You can’t apply it when fundamental rights are infringed. Same for the test of dominant intention.

Ahmadi: These tests do not apply to fundamental rights, where even in incidental infringement will be bad.

Karnataka AG interrupts – Says Bacchan Singh case brings a paradigm shift that these tests can be used only for fundamental rights.

Ahmadi: Bacchan Singh ultimately holds there is no infraction. It does not hold pith and substance test has to be used for fundamental rights. The argument was Article 25 is subject to Article 14. For that, you have to show someone else’s fundamental rights are violated by someone wearing hijab.

If someone says I have to have a religious prayer and class must be stopped, that is a good ground to prohibit that observance. But as far as Hijab is concerned, no such case shown.

We have a slogan “Beti bachao, beti padhao”. Should it not be the priority of the state to ensure education of the girls rather than a misplaced priority on discipline which undermines autonomy and eventually results in denial of education?

I have referred to several letters of students who say that they are not allowed to enter or write exams.

Karnataka AG: This will cause us some prejudice as we don’t know in what context.

J Gupta: We will go by established practice no fresh documents in rejoinder.

Shoeb Alam: He says wants to clarify court’s observation regarding whether circular is “law” under Article 19(2)- definition of law under 13 is wide, definition under 19(2) is narrow. Alam says a recent decision also holds executive instruction is not a “law” to restrict Article 19 rights.

J Dhulia: So 19(2) means statutory law only?

Alam: Yes.

Senior Advocate Devadatt Kamat said the Kannada word used in circular is for “public order”, and the same word is used for “public order” in the official Kannada translation of Constitution, and so State can’t say it does not mean “public order” and that it means “law and order”.

In the pleadings of State, the ground of public order is taken in the counter.

So the circular says students should wear clothes going with unity, equality and public order. Who has to decide?

J Gupta :
Principal will decide.

Kamat :
Principal can’t decide public order. It is a State subject.

Justice Gupta :
Don’t take it to illogical ends. You want it to be decided by the police or state cabinet or the Principal?

Kamat :
High Court has supplied reasons to the GO. How can the High Court come to the aid of the Govt?
They made a grandiose statement that till 2021 nobody wore hijab and this happened suddenly in 2022. HC also says there is no pleading in the writ petition that you were wearing hijab since admission.

Justice Gupta: In a writ petition, there is a mention that she was wearing hijab.

Kamat: And there is no counter-affidavit controverting this fact.
High Court says pleadings are “militantly is absent”. I don’t know what English is this. There is no question of militancy here.

Kamat concludes. Senior Advocate Sanjay Hegde now making rejoinder. He cites Justice Gajendragadkar’s judgment in Mirajkar case to say if an issue can be decided on narrow grounds, that course should be adopted, leaving larger issues undecided.

Hegde: So the question of essential religious practice, was it essential to be decided? It was no essential. It could have been decided on narrow grounds. Do you ave the power? Has the power been exercised just and reasonable?

Hegde : The only power they are showing is Rule 11

J Gupta : Mr. Hegde we have understood your submissions. Now our homework starts.

Finally, it was argued that the court needs to examine competing fundamental rights in the case at hand to arrive at a conclusion.

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