The petitioners’ counsel also relied on the principle of fraternity, and the ground of public order to question the ban.
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THE Supreme Court division bench comprising Justices Hemant Gupta and Sudhanshu Dhulia continued to hear today a batch of petitions challenging the ban on wearing the 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.
Dr. Aditya Sondhi’s contentions
In today’s hearing, senior advocate Dr. Aditya Sondhi argued that the ban on the hijab may appear innocuous and neutral, but as per a recent report by the human rights body, People’s Union for Civil Liberties, and the 2006 Justice R. Sachar-led High Level Committee report on the social, economic and educational status of muslim community of India, which observed that Muslim women in India face discrimination due to practices of wearing religious items of clothing like the hijab and the burka, it has an adverse impact on the right to education of Muslim girls. This leads to indirect discrimination, recognized by the Supreme Court in Lt. Col. Nitisha & Ors. versus Union of India & Ors (2021).
Further, he referred to the recent judgment of the Supreme Court of Nigeria in Lagos State Government versus Asiyat Abdulkareem (through her father) & Ors (2022), in which the court had held that a ban on hijab violates Muslim students’ right to freedom of thought, conscience and religion, and the dignity of human persons and freedom from discrimination guaranteed under Sections 38 and 42 of Nigeria’s Constitution of 1999.
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 in Dr. 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.
