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Synopsis

Today, the Supreme Court Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia, continued to hear the petitioners in the Hijab matter, which challenged the Karnataka High Court judgment, restricting Hijabs in Pre-University Colleges. There are some writ petitions, and a few special leave petitions before the Court. The matter is to be heard on Monday, next.

Considering the turn of events, and hence the arguments in the matter, the Court has witnessed umpteen contentions. Where some were repetitive, some were more repetitive, while the others raised serious questions and doubts on the eligibility and competency of the Top Court to decide on the matter.   

On the Karnataka High Court Judgment, Senior Advocate Colin Gonsalves commented, “The judgment of the High Court is from a perception of the majority community where the minority view is seen very partially, It is a majoritarian judgment. It does not have constitutional independence”. 

In the arguments, the Counsels consistently cited three foreign judgments for drawing an inference from, and hence to be applied in the present context. Judgments from Canada, Kenya and South Africa were relied on to prove how the various interpretations have been given to important cultural practices of various religions and cultures. In one of the judgments, the Court said, (as put forth by the Counsel) “the direction to force a girl to sacrifice her religious practice, was degrading and devaluing her sentiments for her culture, therefore not justifiable”. Today, 8 counsels submitted their arguments before the Top Court.

Further it was contended by Senior Advocate Jayna Kothari, that in the present case at hand, the discrimination was intersectional where it is not only on the basis of religion but also sex. And the need to go to the threshold of deciding the essentiality of practice is not needed. And further referred to CEDAW (Convention on Elimination of All forms of Discrimination Against Women), which India has ratified. 

However, Senior Advocate Dushyant Dave persistently contended that the matter requires more time to be heard and denied to specify a time to argue the matter, when the Court insisted. He submitted that , since it affects millions of people, he needed to show the Constituent Assembly Debates, warnings of Sardar Patel, and speeches of Dr. BR Ambedkar to substantiate. And he submitted that “Let me tell you at the outset, this matter should have been referred to a larger bench. This is not how it should have been heard. Your Lordships are the custodian of the Fundamental Rights”.

An issue was also raised on the Court's competency to decide the present matter, where the Counsels contended that the Court lacks expertise to interpret the religious scriptures. A subsequent issue that was raised today, was on the eligibility and the understanding of the Court of a matter that pertains to a ‘minority group’. The issue was raised by Senior Advocate Colin Gonsalves where he submitted that, “Constitutional morality is the ability to see an issue through the eyes of a minority. A person from majority cannot understand quickly, they are yet to learn”.

 Senior Counsel Abdul Majeed Dhar, submitted on the validity and the period when the Suras of Quran were revealed. And in furtherance of the same, recited Arabic phrases before the Court to establish his arguments. However, the Court did not approve of the practice. The Counsel even stated that he is a student of contemporary studies. And tried to establish the fact that the author itself erred in interpreting the Quran. 

Senior Advocate Meenakshi Arora, referred to the Convention on the Rights of the Child, which later she found to be irrelevant in the context. While further submitted that Kendriya Vidyalayas allows wearing of hijab in schools.

She stated, “We as Hindus are a majority in this country, but a minority everywhere. We carry our religious and cultural practices everywhere. We wear red threads, although people do ask us, but we answer them accordingly”.

The point of schools being a qualified public place was repeatedly argued by the Counsels. And vehemently denied to accept.

Today, the Shia perspective of the matter was also represented since it was not taken up before. The counsels further argued how the rights of the minority, specifically girls of the minority and the vulnerable group would be hampered if the restriction is held to be valid. Statistics and data was put forth to establish the drop out rate of Muslim girls in colleges. The data so presented, however did not have shocking differences in numbers, from other religions, as Justice Hemant Gupta pointed out. While, Justice Dhulia, pointed towards the upper secondary data, which did have a marginal difference, but the Counsel couldn't prove that it was a direct result of the ‘ban on hijab in schools’. 

More data was provided, but it couldn't be established that it was for the relevant group in question i.e. girls in the Pre-university Colleges.

What is to be noted, is that the question which was put under scrutiny, of Hijab being an essential practice under Islam or not, was eventually dropped from the arguments. Senior Advocate Prashant Bhushan and Senior Advocate Kapil Sibal, contended that, “it may not be necessarily prescribed as an essential practice by Islam, I may still be allowed to wear it . If I bonafidely believe that it is an essential practice of my religion then it is protected under Articel 25”. And that it has acquired a religious identity because certain women wear it habitually. Further asked to proscribe ‘all symbols of religious identity’ which are many, when proscribing hijab from schools.

A parallel was drawn between Golf Clubs validly mandating collared shirts because they are private institutions, while schools being public institutions, validly cannot decide the dress code of students. 

Senior Counsel Kapil Sibal’s standpoint was that 'the right of expressions should not stop at the school gate’. And further contended that the school uniform is to bring a sense of belongingness amongst students, for which even the economic background is not considered. And he further said, that if a student wears something ‘that is not part of the uniform’ but ‘reflects their culture, traditions and background’, that should be allowed. And questioned the relevance that the Constitution holds.

What is to be gathered further is that bullying and harassment were taken as the other grounds for permitting hijabs in schools. It was submitted that this right to choose their apparel, and ‘asking girls to take off their hijabs before entering a school makes them feel undressed’. While a Sikh is not asked to take off his turban. And further drew an analysis, stating that a Muslim girl feels for her hijab with the same intensity as a Sikh boy feels for his turban. 

On the line of turbans and hijabs, it was also contended that Kirpans are constitutionally protected and turbans are statutorily protected, was the line of argument of the State. And moving in that direction, if hijabs were not previously acceptable, could be acceptable now. The Shirur Mutt Case, and the test devised therein was referred to time and again for establishing the essential religious practice.