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Synopsis

Today marked the 10th and the last day of hearing in hijab matter, and the Court has reserved its judgment. A Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia was hearing the matter which came before the court after Karnataka High Court upheld the decision of the Karnataka Government. The government disallowed wearing hijabs in pre-university institutions and ruled that it is not an ‘Essential Religious Practice’ (ERP) of Islam. This ruling has been vehemently debated upon in the last few days, while the other party cited reasons and rationale on the validity. 

Senior Advocates Dushyant Dave, Devdutt Kamat, Salman Khurshid, Hufeza Ahmadi, Sanjay Hegde, and Advocate Shoeb Alam appeared before the Court

Senior Advocate Dushyant Dave opened his arguments today, asking the Court to refer to words ‘students carrying out religious observances’ in the circular in scrutiny. Further stated that PFI (Popular Front of India) has no connection with the practice, as was contended. 

It was also stated that the argument of the AG calling the guidelines to be an unsubstantiated document that said uniform is not compulsory, is not correct, as that would mean ‘the government has disowned its own document’. 

Then the Senior Advocate referred to an old circular of the Karnataka Government, to which the Court asked,

‘The circular you have referred to says uniform is illegal. The question is whether hijab is allowed with uniform or not. 

No, the question is whether a uniform was even prescribed or not, replied Sr. Adv Dave.

Whether there was uniform or not is not the question. It is whether hijab is allowed or not, with uniform or no uniform, the Court then cleared again.

On whether the hijab being an essential practice or not, he further stated that 'for those who are believers it is essential, for those who are not, it is not essential'. 

Senior Advocate Salman Khurshid, while citing Triple Talaq, submitted that he was an Amicus Curiae in the matter, and himself contended that there was nothing in Quran that could justify triple talaq, and only two exceptions were cited from hadith’. 

And further cited the Ayodhya Judgment, where the Court held that a Mosque is not an essential practice,and the Quran also does not say. The point was made in reference to the Court’s right to decide on essential religious practices while striking a balance between the rights and the religious rights of the individuals. And further referred to Puttaswamy’s case, and the types or privacies, while stressing on ‘bodily privacy’. 

Senior Advocate Hufeza Ahmadi asked the Court, that if the parties are contending a violation of a right of others if girls were to wear a hijab, then they should be able to point out which fundamental right of other students was infringed. And that the parties did not.

He further asked the Court, 

‘if tomorrow there is a circular saying you cannot wear a turban, can you say that it does not target Sikhs? The circular has to be read as a whole’. And further said, ‘The target is only a headscarf, and it does not not take much inquiry to know which community wears a hijab’.

And indicated that the focus of the teachers should be on education and not on discipline and uniformity. Further, he indicated a small percentage of girls wearing a hijab, and said that even if it is small, what purpose would be served with that kind of discipline is enforced. 

Advocate Shoeb Alam, stressed on the definition of law under Article 13, which is much wider than the definitions under Articles 19, 21, 17.

Senior Advocate Devdutt Kamat, cited Kannada terms to establish that the term used was Public order, and not law and order. He said, ‘Saarvajanik Suvyavasthe’ was used everywhere which means Public Order. And objected to the contention that there nobody was wearing a hijab till 2021, as there is no pleading to what was contended.

He further gave an instance drawing a parallel to the situation, he said,

‘I wear a namam to school in a Muslim locality, and they take an offence and get provoked, and in turn even they start wearing green shawls and what not, would that be restricted too? It has to be seen where the State’s power rests to restrict it’.

Senior Advocate Sanjay Hegde, ended his argument by saying, ‘if you make an order which has an effect to create an exclusion, would that be fair and reasonable?’.

CASE TITLE: Aishat Shifa vs State of Karnataka