Dr. Sondhi argued that Section 38 is akin to Article 25 of the Constitution of India, which also protects the right of the female Muslim to manifest her religion through practice and observance, which includes the right to modestly cover herself from head to toe after reaching puberty.
Lastly, he called out the state government against the reference of public order under the GO. Referring to the Supreme Court’s judgment inDr. Ram Mahohar Lohia versus State of Bihar & Ors. (1965), in which this court had said that the test of public order is of an extremely high standard, and even the situation of law and order does not partake the nature of public order, he questioned which dimension of public order the Karnataka Government is concerned with. He submitted that all those criteria are missing in this case.
Dr. Sondhi told the court that when the state government is relying on reasonable restrictions under Articles 19(2)-(6) or 25(2) of the Constitution, the burden is on the State to justify them. Irrespective of the presumption of constitutionality of the legislation or State actions, once the court finds that there is a fundamental right that subsists in the rights under Articles 19, 21 or 25, or all of the Constitution, the burden shifts on the State to justify the reasonable restrictions, as per the Allahabad High Court in Sagir Ahmad & Ors versus The Govt. of the State of UP (1953).
Dr. Rajeev Dhavan’s contentions
Senior advocate, Dr. Rajeev Dhavan, listed four entitlements. The first, he said, is the right to dress, which is a part of free speech, and can only be subjected to the reasonable restriction of public order. No other ground of Article 19(2)-(6), he argued, applies. Second, the doctrine of privacy can also be restricted based on public order.
The third entitlement, he suggested, is the essential religious practices test, which he pointed out has diverse views. The Kerala High Court considers hijab as an essential religious practice, but the impugned Karnataka high court judgement does not, he told the court. The last entitlement, he went on, is the prohibition of discrimination on the ground of religion and sex. He told the court that the aspect of discrimination is the most important, as this issue is not just a matter of discipline.
Justice Dhulia asked Dr. Dhavan if discrimination is happening in all schools. Dr. Dhavan told the court that in certain states such as, for instance, Kerala, the wearing of a hijab is farz (duty). However, he said that heckling of students wearing the hijab and the denial of rights at the social level of students wearing hijab are taking place. All over the world, the practice of wearing hijab is recognised, he told the court.
Dr. Dhavan challenged the foundation of the GO, which he argued is based on false foundations. The GO, he told the court, refers to decisions by the High Courts of Bombay and Madras that do not deal with public order. Further, the power is left to College Development Committees to decide whether they will allow the wearing of hijab or not. For private schools and colleges, their administration will decide it. So, it is left to the committees to decide whether they will act in furtherance of Constitutional principles or not. There is no other foundation to the GO and thus, the Karnataka high court judgment should be considered directory, he submitted.
Lastly, he argued that if wearing hijab is an essential religious practice, then the court will have to see if it is bona fide. If it is, then no secular authority can interfere with it, as per the Supreme Court’s judgment in Bijoe Emmanuel & Ors versus State of Kerala & Ors (1986).
Huzefa Ahmadi’s argument
Senior advocate Huzefa Ahmadi raised a point on fraternity. He told the court that the purpose of involving fraternity is to invoke social sensitivity towards inequality, which is not the same as uniformity, as allegedly ushered by the GO.
“The impugned GO, while emphasising fraternal behaviour, misunderstands a set of concepts, and confuses the same as being antethesis of diversity,” he noted.
Ahmadi referred to the Preamble of the Constitution to suggest that liberty and equality are qualified whereas fraternity is absolute.
The court will continue to hear the petitions on Thursday.