Hijab Not Essential Practice, Students Made Part Of Conspiracy To Create Social Unrest: SG Tushar Mehta To SC [Day 8]

He submitted that schools have the statutory power to prescribe uniform and that it can curtail display of religious symbols in a secular institution. "There is a statutory power in the Govt to issue direction to schools to ensure compliance with rules. There was a good and reasonable justification for exercise of that power."

He also argued that the impugned GO does not prevent students of only one particular community from wearing an apparel. "Other community started coming with saffron shawls. Saffron shawls are also prohibited," he submitted.

On the point of essential religious practice, the SG argued that the practice must be shown to be compelling, co-existing with the religion itself. However, in this case, the SG said, the Petitioners failed to show that wearing of hijab is a practice from time immemorial, whether it is so compelling that if it is not worn, they will be thrown out of the religion.

COURTROOM EXCHANGE

Students made part of PFI's conspiracy to create social unrest: SG

He alleged that till the year 2021, no girl student was wearing any hijab. However, the students were made part of a larger conspiracy by the Popular Front of India and the government would have been guilty of dereliction of constitutional duty, had it not acted the way it did, the SG said.

"So far uniform was being scrupulously followed. Nobody was insisting for wearing hijab or saffron shawls…In 2022, a movement was started in social media by Popular Front of India, there were continuous social media messages -start wearing hijab. This was not a spontaneous act by few children. They were a part of larger conspiracy and children were acting as advised."

"You are saying that nobody was wearing hijab. In one of the writ petitions, there is an averment that she was wearing hijab and suddenly it was stopped," Justice Gupta pointed.

SG responded that the averment is unsubstantiated and that the uniform code was in vogue at least since 2013. Hijab was not part of the uniform.

Justice Gupta then asked if all this was part of the pleadings.

SG responded that the relevant materials were placed on record before the High Court and the impugned judgment reflects the High Court's dismay as to the manner in which the issue was ignited in the middle of academic year, to create "social unrest".

"Children are not originally thinking. Nobody was wearing hijab. Suddenly an agitation started…" the SG said.

Justice Gupta then asked if any chargesheet has been filed in the case for conspiracy behind Hijab agitations.

The Solicitor responded in the affirmative.

Impugned GO secular: SG

Solicitor General argued that it would be doing disservice to contend that the impugned notification prohibits only hijab.

"Other community started coming with saffron shawls. Saffron shawls are also prohibited," he submitted at the outset.

He referred to Kundapura college resolution which prescribes that students will wear uniform as prescribed. "They don't say hijab," SG emphasized.

No suppression of minority: SG

The Solicitor General submitted that Dave's arguments on marginalisation of minority community are "far-fetched". "Government had to do it (restrict hijab) in public order," he said.

Justice Dhulia asked the SG what was this 'public order' situation.

He responded,

"There were agitations. Students were protesting outside the gates, saying we want to wear hijab, there were saffron shawl wearing students...We are referring to both hijab and saffron (in the circular)… It is not that one community will be refrained from wearing one particular apparel...all students must wear the uniform prescribed. The circular is religion neutral."

Justice Gupta told the SG that the argument raised is the Education Act is meant for regulating educational institutions and not students and there is no clause in the Act which talks about directions to be followed by students.

SG responded that the circular directs the colleges only to bring discipline in the format.

"Direction is to the institution that you have your uniform implemented and if there is no uniform, have something which does not show any identity…The order does not direct students, order directs institutions.

Power is to issue direction to institutions. There is a statutory rule providing for uniform and state govt directs school authorities to implement uniform and there is no disparity between one student wearing something and another student wearing another. Necessary statutory power (Rule 11 of Karnataka Education Rules) is there for the Govt to issue the direction. Govt did not say girls should not wear this...it is a religion neutral circular..."

At this juncture, Justice Dhulia asked if their emphasis is only on dress?

"Yes, we did not touch any part of the religion," the Solicitor responded.

Justice Dhulia then remarked, "In other words, had there been no uniform, there would have been no objection to scarf or hijab?"

Then the other part of my submission will come, the SG said.

"If no uniform has been prescribed by the management, the students shall wear that dress which goes with the idea of equality or unity...so no identification of any particular religion…So no hijab or saffron shawls...you are going as students, so go as students..."

Hijab not an essential religious practice: SG

The Solicitor General argued that there is no assertion by petitioners that wearing of hijab is a practice from time immemorial or that it is so compelling that if it is not worn they will be thrown out of the religion.

"The practice must be so essential, like in case of Sikh Kara, Pagdi, etc... you cannot think of a Sikh without them at any part of the world…There was no averment by the petitioners that the practice started with the religion itself. Practice must be shown to be co-existing with the religion itself. Practice must be shown to be compelling. No pleadings by petitioners on this."

Significantly, Senior Advocate Dushyant Dave appearing for the Petitioners had relied on Shirur Mutt case to argue that any religious practice, and not just essential practises, are protected under Article 25.

As per the SG, this is a "constitutionally fallacious" argument.

"For being an essential religious practice, it should have started from time immemorial. It should co-exist with religion itself. Such practice must form the cornerstone of religion itself," SG read from precedents cited in the High Court order.

He added that there are Constitutionally Islamic countries where women are fighting against hijab.

"Which country?" Justice Dhulia asked.

"Iran. So, it is not an essential religious practice. Mention in Quran will not make it essential; it may be a permissible or ideal practice," SG responded.

Uniform in schools essential: SG

Senior Advocate Dave had argued for the Petitioners that uniform is an "unnecessary burden" on the majority section of the society and that school students are not part of regimented forces requiring strict disciplinary measures.

Responding to this, the SG submitted,

"What is the purpose of Uniform? Somebody is not dressed in a way I feel inferior. Uniform is for uniformity and equality. When you want to cross that threshold, your test is also on a high threshold…"

He referred to a US decision regarding restrictions on growing hair in police forces.

Justice Gupta pointed that in India, there is a parallel Supreme Court decision of the airman not being allowed to wear beard. However, he added, that the level of discipline in armed forces is different from the one expected from students.

"Level of discipline cannot vary from individual to individual…and this is for uniformity, not harming anyone," SG responded.

Article 19

Petitioners have argued that hijab is part of their right to expression under Article 19(1)(a) of the Constitution.

In response, the SG referred to a US decision where a lawyer was prevented from wearing a cap to the Court as part of 'operation thunderstorm'. It was held therein that restriction in such a "regulated forum" will be upheld if it is reasonable and view point neutral.

Justice Dhulia said that the Petitioners are willing to comply with the uniform, in addition to wearing hijab of the same colour. "They are not saying they are not wearing uniform...for example a child may wear muffler."

SG responded, "There cannot be dress showing religious identity when I am in a secular education…suppose Bar Council of India tomorrow prohibits wearing of tilak is not allowed, it will have to go. And tilak is not part of essential religious practice."

"So you are saying uniform means uniform with no addition or subtraction...so what about a belt?" Justice Gupta asked.

"Suppose the uniform says short pants and if it can't be worn without belt, may be...uniform means uniform," SG said.

"So anything more than uniform is not permitted? But somebody may need spectacle due to poor vision," Justice Dhulia said.

"Spectacles are not part of religion," SG responded.

"What about muffler?" bench asked.

SG responded that winter clothes are allowed. "If it does not show your religion, why not? But not a skull cap."

Justice Dhulia then asked that if a cap of same uniform color is allowed, why not hijab?

"Cap is not against unity or equality," SG responded.