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Synopsis

Tuesday, was the eighth day of the hearings in the hijab matter before the Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia of the Supreme Court. Senior Advocate Dushyant Dave, Solicitor General Tushar Mehta, Advocate General of Karnataka Prabhuling K Navadgi appeared before the Court. The matter is to continue further tomorrow.

Senior Advocate Dushyant Dave in his continued submissions today began with reading a judgment to convey that establishing essential religious practice was never the intention. And when the Court asked to 'drop the debate of essential religious practices and go without it', he contended that it is not him but the Karnataka High Court who raised it. Many instances (Shrinath ji temple) were given to substantiate the fact that the practice should not be of essential practice but only religious practice. And further appreciated the various rituals and traditions that are followed.

He stressed on wearing of hijab being practiced in order to practice the right to dignity. "Dignity is very important in this case. Hijab adds to it. Hindu woman covers her head because it is dignified". To which the Bench remarked  ‘the definition of dignity has changed over the course of time’, and in turn he nodded in acceptance. Senior Advocate Dave, even raised news from the ‘‘newspapers’ in his contentions, where he indicated towards the minorities being attacked in the State of Karnataka, and Muslims being thrown out wanting to sell outside a temple.

He further brought Kanwariyas and the practice of music bands and enjoyment with dancing, in the context, to the Court's notice. And contended uniform as an unnecessary burden on economic conditions, to which the Court said, "Somebody is coming in Merc, someone is coming in Maybach, you know. Uniform is from the same fabric. Your richness and poverty does not appear on it".

Subsequent to which the Senior Advocate said, "The finest of the social organisations today, the RSS, they have a uniform, and a headgear as a part of the uniform". And said, "We have only a limited question, whether the headgear can be permitted with the uniform". 

Senior Advocate Dave read out an array of constituent assembly debates, on which the Court asked whether the individual opinions be referred to. He clarified that it is to build an understanding of the thought process, intent and the mindset.

'Malice in law' was an argument that was stressed on in various contexts. Senior Advocate Dave referred to a catena of judgments to put forth, that the fundamental right to life inherently contains, 'right to life with dignity and all that goes along with it' as a 'bare minimum expression of the human self'.

Solicitor General, Tushar Mehta in his arguments first attempted the Court's question on dropping the test of essential religious practice', to which he said that if it is accepted the society will go into a chaos. 

SG, Mehta brought two facts before the court, (a) "till the year 2021 no girl was wearing a hijab nor this question arose; (b) it would be doing disservice to contend that the impugned notification prohibits only hijab, discriminating against their religion". He submitted, 'that so far the uniform was being scrupulously adhered. But in 2022, a movement was started by an organisation called Popular Front of India. And was not a spontaneous act of children to wear hijabs, it was an act to which they were acting (adhering to)'.

He further pointed out that orange shawl or gamcha was never permitted. And then referred to the year 2013, when nobody deviated from the uniform, in Udupi.

Heavy reliance was based on the impugned circular being 'religion-neutral direction which does not prevent one community from wearing one particular apparel'. 

The Court the pointed out that there is no clause in the act that talks about directions to be followed by students, to which he in turn said, 'Institution is a building. Directions are for the entire building and not directly to students'.

The Court asked whether 'chashma' written in the Code? Since glasses may be needed because of the vision. And then asked the rule on muffler.  And further asked, "had they been wearing hijabs as a matter of health, to protect themselves from cold, then you would have allowed"? To which SG said, "in Karnataka the weather is not so cold for the condition to arise".

SG Mehta raised many arguments on uniform to be a dress code, as a mandate. Many instances were relied upon to substantiate the need of uniform in every institution, and was of the opinion that 'uniform can not vary from institution to institution'.

On the question of God making a balance in good deeds and bad deeds, after death, he submitted, 'that those are beliefs and not religious practices'. And such beliefs exist in every religion, and a person should be God loving rather than God fearing.

The Court very categorically opined that, such beliefs are of the religion, and are Farz in Quran. And it is not for them to decide upon it.  

SG Mehta also gave a reference of the countries where women are not allowed to drive. Even cited Iran as an example, 'where there is a lady pilot, but from the house, her husband has to drive her'. While he even gave an example of the current situation in Iran on hijab.

On allowing hijab in a secular institution, SG commented, “We are not in Vedshalas, Pathshalas or Madarsas. They are religious institutions. But when I am in a secular organisation, which itself promotes secularism then we have to follow the conduct to be followed”. While stressing on the interpretation, he also submitted that neither Bhagvad Gita or Quran has to be read in light of 5 different interpretations.  

The Solicitor General ended his submissions while addressing the Court with, “For me it is not a matter of religion at all, it is a matter of uniform conduct among all the students”.

Advocate General of Karnataka Prabhuling K Navadgi, contended that according to him there was no conflict between the Durgah Committee case and Shirur Mutt (as was vehemently contended before). Shirur Mutt developed the concept of “Essential Religious Practices” which was followed in Durgah Committee, he submitted. He is to continue with his arguments tomorrow.