If I Wear A Headscarf, Whose Fundamental Rights Am I Violating?Sr. Adv. Devadatt Kamat In Hijab Case Hearings [Day 3]

The Supreme Court, on Thursday, continued hearing the batch of petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim girl students in some schools and colleges in the State. The matter was heard by bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. The arguments were continued by Senior Advocate Devadatt Kamat from the last hearing on the matter. 

International Precedents

In the last hearings of the matter, Senior Advocate Devadatt Kamat appearing for the petitioners had argued that the Government Order, banning Hijabs in educational institutions was not "innocuous", as argued by the State, but violated students' fundamental rights under Article 19, 21 and 25 of the Constitution. To support his arguments, he had heavily relied upon a judgment of the Constitutional Court of South Africa, KwaZulu-Natal and Others v Pillay, pertaining to the right of a Hindu girl from South India to wear a nose ring. In the hearings, the bench had asked him how parallels could be drawn between India and South Africa and what provisions existed in the South African Constitution regarding the issue.

In today's hearings, Sr. Adv. Kamat commenced his arguments by stating–

"Your lordships were right, South Africa is much more diverse, and the scope of protection is wider. Justice Dhulia had pointed out decisions in Continental Courts, it was one judgment in Austria...there was head scarf ban targeted at one community which was held unconstitutional...Students belonging to Islamic faith said it was part of their decision. The judgement stated– Selective ban which forbids Islamic girls from wearing headscarf may have adverse effect on the inclusion of female students concerned and making access to education more difficult for Muslim girls and marginalizes them..."

Article 25 (1) : Restrictions on basis of Public order, Morality and health and other Fundamental Rights

Referring to citizens' freedom free profession, practice and propagation of religion, Sr. Adv. Kamat stated that Article 25 had two parts– first, 25(1) and second, 25(2). He stated that Article 25(1) has three sets of restrictions in it, namely, public order, morality and health and other provisions of fundamental rights chapter. He submitted that the State had not justified the restriction of Hijab in school either on public order or morality or health. Further, the State's argument that a head scarf would offend other people could not be a reason to ban Hijab. Therefore, he said that the impugned Government Order could not be a valid restriction for the purposes of first part of Article 25.

At this juncture, Justice Dhulia reminded him that this argument under Article 25 would be available to him if he was arguing that wearing hijab was an essential religious practice for Islam but in the last hearings, he had stated that he would not be using this line of argumentation. To this, Sr. Adv. Kamat stated–

"No, I will make it clear. This right comes from Article 19 and also Article 25. Every religious practice may not be essential, but that does not mean that State can keep restricting it as long as it does not fall foul of public order, morality or health. For example, when I wear a Namam, Senior Advocate K Parasaran, he is a father like figure for us, he wears Namam...Does it affect discipline or decorum in Court?"

Justice Gupta interjected and stated that dress code in court could not be compared with the instant case. He said that–

"Last day, Mr.Dhawan mentioned pagdi. It might be an essential dress. In Rajasthan people wear pagdi. In Gujarat too."

However, Sr. Adv. Kamat reiterated his point and stated–

"I can wear head gear, kara, as part of my religious belief. It may not be a core religious practice. But as long as it does not affect public order, health or morality, it can be allowed...Your lordships know the Anand Margis case, where Tandav dance was prohibited."

Justice Gupta was not convinced by the same and stated that wearing a hijab in street may not offend anyone, however, wearing it in a school might as the question was about what kind of public order the school wanted to maintain.

Heckler's Veto Principle: Public Order v. Free Religious Expression

Sr. Adv. Kamat then introduced in the submissions the "Heckler's Veto". For context,  a heckler's veto is the suppression of speech by the government, because of the possibility of a violent reaction by hecklers. It is the government that vetoes the speech, because of the reaction of the heckler. The first amendment of the United States holds Heckler's Veto as unconstitutional. In his arguments today, Sr. Adv. Kamat attempted to establish that the Indian Courts had applied Heckler's veto in their decisions. He stated that–

"School can't take that ground of public order. If I wear a head gear and someone gets offended and makes an issue and shouts slogans, police can't say I can't wear it. That will be hecklers veto. It is on this basis that the ban was imposed. Last day the AG said the Government Order was issued after some students demanded to wear saffron shawls and the ban was imposed in that context. Can hecklers veto be allowed? You (State) can't take a facile ground that public order will be violated. It is your duty to ensure an atmosphere of public order so that I can exercise my rights freely."

In this context, Sr. Adv. Kamat referred to the judgment of Indibility Creative Pvt. Ltd. v. Government of West Bengal & Ors., where a bench of Justice DY Chandrachud and Justice Hemant Gupta, in the case of mob protesting against film screening, held that once an expert body (CBFC) has certified the film, mob cannot stop it and State had to protect the exhibition. He stated that in this case, Heckler's veto was applied.

Justice Gupta did not seem convinced and stated that–

"There are issues where there are disputes within religious precincts itself. Public order is a state responsibility at all places. Sometimes even in court...Mr Kamat don't waste time on public order...You read the Government Order and tell subsequently what was held by the Court."

Sr. Adv. Kamat submitted that as per the Government Order, the State provided that the wearing of headscarf violates public order, and that public order ground was raised in the statement of objection. 

Arguments under Article 25(2) : Does Karnataka Education Act, 1983 provide for 'social reform in a religion'?

Sr. Adv. Kamat commenced his arguments under Article 25(2) of the Constitution by posing the question– "If I wear a headscarf, whose fundamental rights am I violating?" Here, Justice Gupta remarked– "It is not the question of violating other's fundamental rights, the question is whether you have the fundamental right." At the outset, Sr. Adv. Kamat submitted that as per Article 25(2), State could make a law for social reform in a religion. He stated that–

"State is pitching on the Education Act. The question which arises for your lordships is which is this great law which provides for social reform. None. Look at the preamble of Education Act, Section 7, Rule 11, none of the framers of the law ever thought this will be put to restrict right under Article 25. Any restriction on right must be direct and proximate, not indirect or inferential. The High Court says the Act is "as clear as Gangetic waters". I submit it is totally muddied. According to the State, the Preamble (to the Education Act) is a restriction. High Court says the objective of promoting secular outlook mentioned in the Preamble to the Act is a restriction. I am at pains to understand how can this be a restriction. Then Section 7 of the Act. A scheme to promote harmony which the State can make under Section 7 is construed as a restriction on wearing hijab. HC refers to the power of the State to frame a scheme to restrict practices derogatory to women. Where does it say hijab is derogatory to women?"

Bonafide practice of Religion v.  Belligerent Display of Religion

While continuing his arguments on whether wearing a Hijab affected public order, Sr. Adv. Kamat stated that restriction on fundamental rights on ground of public order must have 'direct and proximate link with public order' and could not be indirect or inferential. He stated that if such links were indirect, the State could infer restrictions which the High Court had approved in the instant case. He argued–

"Whether uniformity in public space is a ground to restrict Article 25? Whether a Muslim girl wearing a head scarf is an affront to discipline? Article 25 does not recognise this ground of uniformity or discipline. The argument of the State is I wear hijab, other students will wear orange shawl. Wearing of orange shawl is not a genuine religious belief. It is a belligerent display of religion, that if you wear this, I will wear this. Article 25 only protects innocent bonafide practice of religion. Wearing a namam, yes, wearing a hijab yes. Wearing of orange shawl is not a bona fide practice."

Is Freedom of Conscience Different than Freedom of Religion?

Sr. Adv. Kamat stated that the High Court had said that the freedom of conscience was distinct with religion and while doing so quoted Dr. Ambedkar from the Constituent Assembly Debates. He submitted that the High Court had erred in the same as in the Constituent Assembly Debates, there had not been a single word by Dr. Ambedkar on distinction between conscience and religion. While submitting that the Constituent Assembly Debates do not conclude that religion and conscience are different, he stated–

"Hindu religion provides for 16 forms of puja. Today somebody lights a diya, is it freedom of religion or conscience? People carry photos of Rama or Krishna. I do. It gives a sense of confidence. Is it religion or conscience? It is not something ordained in the scriptures. High Court has gone into a dangerous territory of separating conscience from religion. We have gone beyond the stage of seeing rights separately. The law has developed that all rights are interlinked. Every member in the Constituent Assembly Debate may have said something. We can't say everything said in Constituent Assembly Debates as gospel truth...Ghanshyam Upadhyay is the only member who spoke of conscience. He says nothing is definite. The only other place where conscience is discussed is on the draft Article of present day Article 32."

To this, Justice Dhulia enquired–

"There may be a person who may not believe in any religion. What about him?"

Sr. Adv. Kamat replied stating that such a person had a right to conscience and that a person may follow some diktats of religion out of belief and some other diktats out of conscience. He also referred to UN documents establishing a link between religion and conscience. 

The Question of Essential Religious Practice

Proceeding with this arguments, Sr. Adv. Kamat stated that the High Court had erred by first deciding if Hijab was an essential practice, without deciding if the Government Order could be a restriction. He stated that first it had to be seen if there was a valid constitutional restriction, and only then could the question of Essential Religious Practice arise. He further submitted that there was a divergence of views between Karnataka, Kerala and Madras High Court judgments on whether Hijab was an Essential Religous Practice as Madras and Kerala have held Hijab as an essential practice but Karnataka had differed. While citing the issues framed by the larger bench in the Sabarimala Review Case, he stated that–

"Your lordships may have to settle it."

Is the Government Order Administratively Sound? 

Sr. Adv. Kamat submitted that the last limb of his argument was based on administrative law. He stated–

"My question is whether the Government Order suffers from a complete non-application of mind and whether the High Court could have supplied reasons for the Government Order? The AG rightly conceded that none of the judgments mentioned in the Government Order prohibited Hijab. But the State says as per aforementioned judgments, ban of hijab is not violating Article 25. That is complete non-application of mind...But the High Court says that the reasons do not matter as long as power to issue Government Order is there. It is settled law Court cannot supplant reasons. And High Court has done so in this case."

As per Kamat, the power in the instant case could not be delegated to the College Development Committee, MLAs or parents who were non-State actor. To demonstrate that CDC was a non-State actor, he stated–

"President of CDC is an MLA. If they are placed under the custody of the MLA, kindly see the repercussions...MLA is not an authority subordinate to State Government. Can they decide issues of public order, morality etc under Article 25? See the enormity...High Court says I have not challenged the circular (constituting CDC). I don't need to. Once you start investing in CDC state power, we can challenge."

With this, Sr. Adv. Kamat concluded his arguments.