Ten takeaways from petitioners’ responses, as Supreme Court concludes hearing on hijab ban

As the Supreme Court bench of Justices Hemant Gupta and Sudhanshu Dhulia concluded its hearing today and reserved its judgment, The Leaflet sums up 10 takeaways which hold the key to the final verdict.   The hearing began on September 5 and today was the 10th day of the hearing.

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The Supreme Court bench comprising justices Hemant Gupta and Sudhanshu Dhulia concluded its hearing today on a batch of petitions challenging the ban on wearing hijab in educational institutions in Karnataka based on the Karnataka Government Order on Dress Code for Students ('GO') and the Karnataka Education Act, 1983, which was upheld by the Karnataka High Court on March 15.

The Leaflet has culled the following 10 takeaways from the final day of hearing, which probably hold the key to the bench's judgment, which has now been reserved:

1. The Karnataka Government has not fully discharged its burden of proving that the ban on wearing hijab inside the classrooms constitutes reasonable restriction, in terms of Article 19(2) of the Constitution, as argued by senior advocate, Devadatt Kamat.

Also read: Hijab not part of fundamental right to freedom of expression: Respondents before the Supreme Court 

2. The exercise of reasonable restrictions under Article 19(2) must be through statutory law and not through executive order, as submitted by advocate Shoeb Alam.

3. The Court can choose to make a narrow interpretation of the issue, especially when it's dealing with constitutional matters, and avoid broader questions like determining Essential Religious Practice, as submitted by senior advocate, Sanjay Hegde, who relied on Naresh Shridhar Mirajkar & Ors versus State of Maharashtra & Ors (1966) to assert his arguments.

4. The GO, issued by the Karnataka Government on hijab, is silent on the conspiracy aspect, as alleged by its counsel before the Court. The rejoinder was also filed by senior Advocate Dushyant Dave, who told the court that the state's argument of a larger conspiracy and that it was the Popular Front of India whose agitation led to the girls wearing hijab has no mention in GO. Therefore, the petitioners suggested that the court should not consider claims/allegations submitted to it in a "sealed cover" by the state government, if it is not on record.  The bench agreed to the plea of the petitioners not to consider such claims if submitted in a sealed cover.

Also read: Hijab ban: Can we decide without going into the Essential Religious Practice doctrine asks supreme court

5. The G.O. clearly targets one community, as it mentions headscarves. It is not religion-neutral as claimed by the state government submitted by senior advocate, Huzefa Ahmadi, before the Court.

6. When girls wear hijab under Article 25 of the Constitution, no one else's right is violated; therefore, there is no conflict between the exercise of two fundamental rights, submitted Ahmadi.  The state's claim that a competing right is violated if the girls claim the right to wear hijab under Article 25 is thus flawed and remains unsubstantiated.

7. If there are two legitimate, but conflicting state aims or necessities to justify a restriction on a fundamental right, the court should weigh both to determine which should have priority.  Obviously, between ensuring the education of girls, and discipline, the former should get priority. The petitioners drew attention of the bench to the letter written by the Karnataka State Commission for the Protection of Child Rights to the State Government suggesting that the ban on hijab would eventually lead to dropouts.

Also read: Hijab ban: To what extent Constituent Assembly debates can be a guide, asks supreme court 

8. Once the girls get a good education, they can make a choice to wear or not wear hijab, in future,  they told the bench.

9. The Supreme Court's judgment in Triple Talaq case has no relevance here because in that case, the majority judges found that it is not an essential religious practice, because Quran is silent on it.  In the case of hijab, as the petitioners claim that it should be considered as a bonafide practice, rather than an Essential Religious Practice, the bench need not be bound by the Triple Talaq judgment.  This was submitted by Khurshid.

10. The court should consider the golden triangle of rights -Articles 14, 19 and 21 – and the violation of fundamental rights together and not in silos; they are to be balanced. So, the alleged violation of Article 19 cannot be above Articles 14 and 21 because there are concerns about privacy rights (behavioural privacy as mentioned by Khurshid).