Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC

The AG further pointed out that it was held in that case that what is optional does not constitute ERP.

"I read this judgment (Qureshi) to show that it has said reading of Quran has shown that sacrifice of cow on that day is not obligatory. The very fact of an option seems to run counter to an obligatory duty. What is optional is not compulsory; What is not compulsory is not obligatory; What is not obligatory is not essential."

AG told the Bench that in France, there is a total prohibition of wearing hijab in public. But it is not that there is no Islam religion in France. "Without Hijab Islam can survive? I just wanted to give the example of France," he said.

Argument of 'free expression' under Article 19 destructive of 'compulsory practice' argument under Article 25: AG

The petitioners had argued that wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution.

Responding to this, the AG today contended,

"According to me that arguments is mutually destructive to argument of Article 25. If their argument accepted, persons who do not want to wear hijab will have the right to not wear also. It would mean there is element of option. Claiming Article 19(1)(a) right is destructive to Article 25. Article 25 right is for compulsory practice. When you assert Article 19(1)(a), it means choice. Art 25 has an element of compulsion as far as dress is concerned. The consequences of a declaration of a court in ERP is that every member of the community is bound to abide."

At this juncture, the Chief Justice inquired from the AG as to what is the State's stand if the petitioners case is based only on Article 19(1)(a).

He responded,

"The right to wear hijab as a Article 19 right can be restricted under Article 19 (2). In the present case, Rule 11 places a reasonable restriction inside the institutions. It is subject to institutional discipline."

Justice Dixit then remarked, fundamental rights are not seen as watertight compartments.

The AG continued, "We have a law in the form of Karnataka Educational Institutional Classification. Rule 11 can be called into question but that has not been questioned. This rule imposes upon them a reasonable restriction on wearing a particular headgear."

Reliance was placed on State Of Madras v. VG Row, which discussed the test of reasonableness of restrictions.

The AG submitted,

"Reasonableness of uniform is not in question. This restriction of uniform is upto 17 years, in PU-II. The Education Act's preamble says formation of secular outlook as an objective. The restriction on wearing hijab is not within the school, it is only within the classroom, during the class hours. The discontinuation of particular practise, does it have any change in religion."

He also relied on the case of Justice KS Puttaswamy v. Union of India (privacy judgment) to argue that privacy ensures that while on one hand, individual has a protected zone of privacy, yet on the other, exercise of individual choices is subject to rights of others to lead orderly lives.

Wearing hijab opposed to constitutional morality and individual dignity: AG

The AG today argued that even if all the arguments made by the petitioners are accepted, the Court will have to see whether the mandate to wear hijab would stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).

In this case, the Supreme Court speaking through Justice DY Chandrachud had held that individual dignity is a protected fundamental right. Hence, the place of religion in public places must be conditioned by a constitutional order. Practices which are destructive of liberty and those which make some citizens less equal than others cannot be countenanced.

Justice Chandrachud had observed,

"To treat women as children of a lesser god is to blink at the Constitution itself...To allow practices derogatory to the dignity of a woman in matters of faith & worship would permit a conscious breach of the fundamental duties of every citizen."

In this vein, the AG submitted,

"If somebody is to come before lordships seeking a declaration, that we want every women of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating. According to me it is impermissible in this day and age...Dignity involves liberty; liberty involves choice. The entire submission of petitioners is based on compulsion.The entire claim of petition is to make compulsion, it goes against fundamental ethos of Constitution."

Justice Dixit inquired whether a declaration that Mangalsutra is an essential practice of Hindu religion would mean that the Court has directed all Hindu women to wear it?

The AG responded, "Today by religious sanction a judicial declaration is sought. The element of choice goes away. A women concerned becomes obligated by religious sanction to wear that particular dress."

"You want to say suppose the court hold that wearing of hijab is essential religious practice, the women who do not wear will be lowering their dignity?," the Chief Justice asked.

"Certainly milords and it is in the context of dress," the AG responded.

 He continued,

"This according to me is concept of liberty of that particular person. Choice to wear, every women of every faith has that choice...There cannot be a religious sanction by way of judicial declaration. This is not for college or school but entire community...women cannot be subjected to a compulsion of a dress in the context of their (petitioners') submissions."

The Bench then inquired if the Sabarimala judgment can be followed in view of the review pending before the larger bench. "What is the legal authority if a judgement is referred to a larger bench, should courts refer to the judgement or not," the Bench asked.

The AG responded that in MS Bhati v. National Insurance Co Ltd, it was held that a judgment will bind the court though same has been referred to larger bench. Therefore Sabarimala judgment is binding, he said.

Arguments by Senior Advocate R Venkataramani

Today, the Court also heard Senior Advocate R Venkataramani, appearing on behalf of college teachers who are made respondents in a writ petition. He stated that the right to freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions on the ground of public order, morality and health.

"I am not belittling what is said in Quran. I am nobody to say that. It is a holy book and people who want to practice the holy book, they must have all the freedom to do that. But when we enter into a public space, which is a qualified public space; School is a qualified public place, every public space will have its own dimensions and therefore public order will be relevant. It cannot be seen in a generic or abstract state," he argued.

It was further contended that if the State takes some measures for ensuring order and disciple, the Courts should not hold strict scrutiny. "Governance is a very heavy subject. Only when there is a breach the courts will interfere. Court will not preach how to govern...Whichever way public order, is perceived, whichever way it is brought in operation, unless it is malafide, court will not interfere," he said.

It may be noted that the petitioners have relied on a judgment of the Constitutional Court of South Africa, in KwaZulu-Natal and Others v Pillay, which upheld the right of a Hindu girl from South India to wear a nose ring to school.

Opposing the same, Venkataramani submitted that the judgment was not based on the dimension of public order and it was mostly a discussion on cultural right. "To borrow judgment of foreign jurisdiction and to apply here will be problematic. If wearing of hijab is important for someone, wearing of tilak on forehead could be important for someone else."

Arguments by Senior Advocate S. Naganand

Naganand appeared for govt PU college, its principal and lecturers. He argued that this is an entirely girls school. Girls students of the petitioners were not in the habit of wearing hijab previously. However, occasionally, some parents of Muslim girls used to enquire if wearing of hijab is permissible. Further, the parents of Muslim girl would request the teachers to ensure that their daughters are not involved in singing , dancing, music and other extracurricular activities.

"I don't know if they mean that Muslim girls should not sing with their classmates. If national anthem is sung, should they not sing? Is it against Islam? If a devotional songs is taught about mother India, should they not sing? What is this that they say here? None of this has got to do with religion. There is a fine distinction between religion and culture. There is distinction between essential religious practice and cultural practise essential to religion," he argued.

It was his case that wearing of headscarf is not Essential Religious Practice and was a cultural practice. He added that relaxations and deviations will be always there from religious injunctions in a pragmatic manner.

"Praying five times a day which is prescribed in Islam for mohammedan, we respect it. Suppose I am riding a scooter and there is a mosque and there is an azaan should I stop in the middle of the road and start praying. If a policemen stops me, can I say you are stopping me from practising my religion", he asked.

He further submitted :

"If a mosque is using loudspeaker for azaan at 5 AM in the morning, I might say, I respect your religion, but I don't want to be woken up. In the course of practicing your religion if you are coming in the way of others, where does the line lay?"

Naganand further stated that the prayers sought by the petitioners are unusual, inasmuch as they seek an inquiry against the College for violating guidelines and taking an hostile approach. However, factual details of the college are not given.

Case so far