Read Time: 15 minutes

Synopsis

With the most interesting last few days, and a series of arguments put forth, addressed to and a whole lot more to be heard, and considered, the Supreme Court will hear the matter next on Monday, 2pm. However, the details of  yesterday’s and today’s arguments of Senior Advocate Devdatt Kamat and Advocate Nizamuddin Pasha, and the interesting yet inquisitive details that the Bench had on the inputs and injunctions of the petitioners, are not something to be missed out on. A bench of Justice Hemant Gupta, and Justice Sudhanshu Dhulia, of the Supreme Court are hearing an issue on the Hijab matter, where the Karnataka High Court’s impugned judgment is under a dispute. 

The dispute before the Supreme Court is regarding the ban on girls wearing ‘Hijabs’ to schools, that the Karnataka High Court had imposed.

On the third consecutive day, the beginning of the hearing started with Justice Gupta asking the Counsel for the petitioner, “Yes, Mr. Kamat, I think you should be a little concise” and asked if all the rest 15 counsels are going to argue for the same long duration. 

 

On choice of appearance and apparel; Right to Dress:

Justice Hemant Gupta: “...If men want to wear dhoti and lungi, is the choice of apparel you are saying”.

The Court further drew distinctions between the similarities (in reference to students) that the Counsel referred to through various judgments. The Bench further provided examples in the routine life that we may witness, drawing a parallel to all of them. 

The petitioners vehemently contended that restriction on hijab in schools, is a direct violation of the ‘Right to Dress as a Fundamental Right’. To that Justice Hemant Gupta responded, “Counsel, you can’t take it to illogical lengths. Hypothetically, if ‘Right to Dress’ is a Fundamental Right, then so is ‘Right to Undress’.

 

On counsel referring to an array of foreign judgments:

Counsel quoted several South African judgments drawing a resemblance to the Indian scenario, and further went ahead to quote judgments from the USA and Canada. The Court refused to accept considering the social and cultural differences. Moreover, Justice Dhulia remarked that, “If you go to the continent, all judgments are against you”, to which the Counsel replied that he has come to “Aruna Roy”. Justice Hemant Gupta in turn replied, “After one hour you have come to India, otherwise you were travelling all around the World”.

However, the Counsel did bring Austria, but even that was rejected by the Court.

Moving ahead with the arguments, the Counsel did agree with the Bench on the opinion on South Africa. He stated ‘South Africa is more diverse. However, the scope of Article 25 of the Constitution of India, is more wide’. And further refused to accept the argument put forth by the State the such practice of wearing hijab to schools, if allowed, then other people will take offence. 

 

Article 25 (1) of the Constitution, the Public Order therein vis-a vis the Restrictions:

The counsel questioned how hijab even touches upon Public Order and Morality, which are an essential element under Article 25 (1) of the Constitution, while stating that the State was absolutely not justified in holding the same. To which the Court clarified that ‘Public Order is on streets’ where wearing hijabs is absolutely not restricted and there the State maintains Public Order., While in schools, it is on the school to decide. Justice Hemant Gupta said, “There are situations where there are disputes within a religion itself, and the Police has to intervene. It is the responsibility of the State to maintain Public order everywhere. Even in courts sometimes Police has to intervene”.

On the Preamble of the Karnataka Education Act, what the High Court considered to be “Gangetic Waters”, the Counsel exclaimed it to be “muddy”.  While calling for the test of reasonableness, a previous judgment by Justice Hemant Gupta was cited which said, “A restriction in the interest of Public Order may only be valid if the relationship is proximate and direct. And not indirect, far fetched”.

Counsel on students wearing orange shawls to school in protest against hijab, said, “It is not an innocent display of faith. It is a belligerent display, and jingoism. Tilak yes, Rudraksh yes! But not an orange shawl. It should be bona fide”

 

Freedom of Conscience and Freedom of Religion:

While rejecting the High Court’s opinion on freedom of conscience and freedom of religion being mutually exclusive,  it was put forth before the Top Court that putting such boundaries is ‘nebulous’ and belongs to stone age. 

It is also pertinent to mention that the Senior Advocate, while referring to “Ghanshyam Gupta, who was the only person who spoke of conscience in the constituent assembly. And mentioned that, “the members of the constituent assembly were all learned and erudite but everything said in the constituent assembly is not a gospel truth”. 

The Court made a clear distinction between a student’s uniform, and the dress that the lawyers wear to the Court. Quoting Senior Advocate, Rajeev Dhavan’s argument on “pagdi”, the Court went on to say, “Like in Rajasthan people wear it as a matter of routine. Because of weather conditions”, and it is not that everything to wear is on religious grounds. 

On the legality of the GO, the Counsel stated that it ‘suffers from non-application’ of mind since either the GO stands on its own or should go. The High Court can’t give reasons for it to stand later on.

Jilbab, Hijab, Burqa-distinction and the validity of the purpose

Advocate Nizamuddin Pasha, while stating the manner in which the High Court read and cited the commentaries, picked the footnotes which were extracted from one place and transposed to another, thereby giving ‘hijab’ a wrong context. It was also mentioned that the definition so drawn, makes hijab a mere ‘cultural practice’. However, the 5 tenets of Islam, of which faith is the first and of utmost importance, without which the rest are meaningless, is the religious and spiritual basis of the religion, thereby establishing it as a fact of religion . It was also stated that “There is no temporal punishment for a spiritual disobedience. Religion has spiritual implications for after life".

The Counsel even clarified the difference between Jilbab (which covers the body), Burqa being a persian name for the same, while hijab, covering the face and bosom. 

Through many Suras (chapters of Quran), Hadiths, different verses, and beliefs of the Prophet, were cited and read out, the consideration of hijab came time and again for protecting women from harassment, the ill effects and the ill eyes of the society. The ‘anti-islamic’ persons were also added later. Further contended, that when the Prophet quoted veil as important, and Quran says follow the prophet, nothing else should be required. 

On comparing 5 Ks of Sikhs and 5 tenets of Islam:

Justice Gupta: It is not very fair to compare Sikhism. Carrying of Kirpan is safeguarded by Article 25 of the Constitution.

Justice Dhulia: There are judgments to support.

The Bench further commented that, the history and the relevance of the 5 Ks of the Sikhs is well established and ingrained in their religion and the Constitution. 

The Court even refused to accept an argument that considered a scenario in France.