Hijab Case- State Can't Say "We Will Give You Education, If You Surrender Your Right To Privacy": Adv Shoeb Alam Tells Supreme Court [Day 6]

Senior Advocate Abdul Majeed Dhar focused on the injunctions in Islamic law regarding hijab. It is his case that Hijab is mandatory as per the holy Quran and the High Court's interpretation that absence of punishment makes the prescription directory in nature, is wrong. (Advocate Nizam Pasha had also taken a similar line of argument. Read more here)

"We are living in a great nation with a great Constitution protecting us, our faith. We have a constitutional protection guaranteed by the Preamble, it is held as part of basic structure faith, belief are protected in Preamble," Dhar submitted.

Senior Advocate Meenakshi Arora submitted that India has ratified the Convention on the Rights of Child, without any reservation. It protects the children's right to practice faith. However, she submitted that the High Court has completely ignored it. She also submitted that this case is important from an international perspective of providing 'reasonable accommodation' to persons belonging to religious minorities.

"Why I refer to other jurisdictions? Just as we Hindus are a majority in our country and minority elsewhere, wherever we are a minority we carry our practices," she said.

Advocate Shoeb Alam argued that Hijab is a matter of person identity and the extent to which an individual chooses to cover his or her body to feel secure from public gaze is a matter of personal choice. The same cannot be taken away by virtue of a person being in public place.

He also argued that the issue of 'Essential Religious Practice' had to be argued before the Karnataka High Court because the impugned GO referred to certain precedents (as per Petitioners wrongly interpreted by the State) and made a statement that hijab was not an essential practice. (Read Senior Advocate Rajeev Dhavan's "false foundations" argument on same lines here)

Alam also contended that State can't enter into a barter system with its citizens, asking them to surrender their right to privacy in exchange for right to education.

COURTROOM EXCHANGE

Right to wear Hijab protected even in public places: Alam

Alam argued that Hijab is a matter of person identity and is linked to a person's dignity. Even a prisoner has fundamental rights; and though there is a shrinkage of rights, there is no surrender.

He further submitted the right to wear hijab in educational institutions can be traced back to the Puttaswamy judgment, where the Supreme Court held that privacy attaches to a person, not to a place. "This is how I take my privacy to the school," he said.

Alam argued that the extent to which an individual chooses to cover his or her body to feel secure from public gaze is a matter of personal choice.

"After Navtej Johar, Puttaswamy, the rights are so wide, there is no hierarchical difference between enumerated and non-enumerated rights… The High Court makes a mistake by saying these are unenumerated rights and are less protected. That takes us back several years before Puttaswamy decision."

State can't barter right to education in exchange for right to freedom of religion: Alam

Alam argued that there is a no concept of "barter of fundamental rights" in Indian Constitution. He submitted that if there is any violation of any fundamental right by the effect of the GO, it is that effect which the Court will look at, not the intent of the GO.

"What is the barter of rights you are talking about here?" Justice Dhulia asked Alam.

He responded, "On one end there is my right to education, on the other end, there is my right to privacy, right to dignity, right to culture. The State GO says, I will give you education provided you surrender your right to privacy. Can it be done? The answer is an emphatic NO."

He referred to St. Xavier's case where the Supreme Court held that if the State compels the surrender of fundamental right to grant a favour, it is inconceivable.

"If the State is extending you a privilege, state cannot exact a barter from you on a fundamental right guaranteed by the Constitution…State can't say I will give you aid on condition that you will surrender your Article 30 rights. This was the judgment in St. Xaviers case."

He also referred to the Olga Tellis case where it was held that Fundamental rights are not conferred to benefit the individuals but to secure the larger interests. No individual can barter away the fundamental rights. Such a barter if enforced will defeat the purpose of the Constitution.

He submitted that the State, under Article 21, has an affirmative duty to facilitate education (Farzana Butool v. Union of India) and a mere executive order under Article 162 will not constitute "law" for the purpose of imposing restrictions under Article 19.

"The GO is a clear restriction, Govt is saying no education with Hijab, this can be made only way of law."

Kothari argued that the Karnataka GO banning hijab in educational institutions is a case of "intersectional discrimination", involving discrimination on the ground of both religion and sex.

"Here, it is both sex and religion. It is the Muslim girls who are specifically affected by this, not others. So, there is an intersection under Article 15(1). It is not a case where all girls are discriminated or all Muslims are discriminated, but it is specifically affecting Muslim girls," she said.

In this regard, reliance was placed on Patan Jamal Vali vs State of AP, where Supreme Court discussed how a sub-set of women who exist at an intersection of varied identities are discriminated against.

Discrimination caused by intersecting identities amplifies the violence against certain communities (gendered/religious/otherwise), it had said.

"It is not merely a religion-based discrimination. It is also based a sex-based discrimination. So, it is sex plus religion we need to analyse in this context," Kothari said.

She submitted that India has ratified the Convention on Elimination of All forms of Discrimination Against Women (CEDAW) and thus, it is obligated to not take policies restricting women in public places.

Article 15 violation does not require to show Essential Religious Practice: Kothari

She cited a UK Court's decision in Watkins Singh v. Aberade Girls' High School, where it was held that the school's action in preventing a Sikh girl who wanted to wear a kara was discriminatory.

"Under Art 15(1), discrimination of religion does not require a threshold as high as essential religious practice. Merely if a person is disadvantaged on the ground of religion, that is sufficient for Article 15(1)," Kothari said.

She continued,

"My argument is by virtue of not being allowed to hijab, whether or not it is an essential practice, we don't need to go to that threshold at all, they are discriminated."

She cited a Kothari refers to a Kenyan decision relating to a Rastafarian student who was asked to shave off his hair. Court held it was discrimination.

Hijab mandatory as per Quran: Dhar

Dhar argued that the Karnataka High Court judgment is flawed inasmuch as it held that Hijab is not mandatory due to absence of prescription of penance or penalty.

"Whatever is the commandment of Allah, which were revealed to Prophet, they are mandatory. Suras are mandatory."

As Dhar then proceeded to mention suras stating that women need to cover their heads, Justice Gupta pointed that several counsels have argued that the Court cannot enter into intricacies of the Quran.

"One argument is that we can't interpret Quran. That was the argument of Dr. Dhavan, Mr. Mucchala and Mr. Kamat to an extent," Justice Gupta said.

Dhar argued that what the Karnataka High Court held is wrong.

"May or may not be, we are taking an independent view," Justice Gupta responded.

As Dhar continued to refer some suras, Justice Gupta remarked, "Mr. Dhar, we don't know Arabic."

"I will give the translations," Dhar said.

He added, "The point is if they are revealed to Prophet, they are mandatory. Karnataka HC says they are directory…Ahmad Ali's commentary (which the High Court relied upon) is wrong."

Justice Dhulia pointed that the High Court relied on Ahmad Ali judgment because the Supreme Court has also referred to it.

However, Dhar said that the verse 'Allah is merciful and forgiving' has confused Ahmad Ali. "It does not mean you don't have to follow suras. It is not that if you don't wear hijab Allah will forgive. Author is totally wrong. It is his interpretation…Quran is the mandate. It is the commandment of Allah, it has to be adhered to."

Hijab ban in educational institutions oversees Child Rights Convention: Arora

Arora told the Court that the United Nations has been overseeing the implementation of the rights and a UN Committee has found that banning of hijab is violation of the Child Rights Convention.

She further argued that if we restrict a religious practice which is neither against public order nor against morality, then we are not teaching our students religious tolerance.

She submitted that the approach taken by the High Court may eventually affect international students that come to the State. "We have today, world is a melting pot, we are in a global village…" Arora said.

"Are the students from other country?" Justice Gupta asked.

Arora responded, "They are from India, but we may have a situation of students from other countries too…"

She submitted that the second largest religion in the world is Islam and across the countries, most practice Islam recognize the wearing of hijab as a part of their religious and cultural practice.

"When a large number of courts across the world, and a large segment of population across the world across the world recognizes hijab, who are we to reinvent the world and say it is not an essential practice. We are in a global village, not living in isolation. When large number of people believe in hijab, it is not called for to determine if it is an essential practice."

"It was you who made the argument before the High Court. Your writ petition was based on it," Justice Dhulia told Arora.

"Sometimes we make mistakes," she responded.

(Read Here Advocate Shoeb Alam's arguments on why it was necessary to argue on issue of Essential Religious Practice before High Court)

Arora continued,

"We had argued on convention on child rights, but there was nothing in the High Court judgment on that. This is not to put down the High Court or anything. But sometimes when we argue, the case takes a particular turn, and some sections are given a disproportionate attention."

Religious minorities and Reasonable Accommodation: Arora

Arora submitted that the foreign precedents cited before the Court are relevant to protect religious minorities.

"Why I refer to other jurisdictions? Just as we Hindus are a majority in our country and minority elsewhere, wherever we are a minority we carry our practices. The judgment of South Africa on nose pin was based on principle of religious accommodation."

In this case, titled KwaZulu-Natal and Others v Pillay, the Constitutional Court of South Africa upheld the right of a Hindu girl from South India to wear a nose ring.

It was the girl's case that wearing nose ring was a part of long standing tradition in South India. However, the State had argued that the girl had agreed to the school code. Further, she was free to wear it outside the school, and hence, removing the same for few hours during school does not impact her culture.

The South African Court had held that preventing her from wearing the nose ring for several hours of each school day would undermine the practice and therefore constitute a significant infringement of her religious and cultural identity.

Arora submitted that the UK Court's decision in Watkins Singh v. Aberade Girls' High School (also cited by Senior Advocate Jayana Kothari) allowing a Sikh girl to wear kara to school, is also based on the principle of religious accommodation.

Lastly, she referred to the decision in Mohamed Fugicha v. Methodist Church, where a Kenyan Court rejected Christian school's objection to allowing hijab in school and approved hijab, saying it was an affirmation of diversity.

School drop out rate

Justice Dhulia had asked yesterday if there is any data on school drop outs. In this regard, Alam referred to reports of National Statistical Commission on Muslim girls education as per which the highest percentage of girls not enrolled in education is 61.5%

"It says over 50% Hindus, 50% Christians girls not enrolled, so the difference is not a shocking difference," Justice Gupta pointed out.

Justice Dhulia then told the counsel that they would require a record of drop out rate among Muslim girls.

Alam assured that he would submit the same during the course of the day.

Background

Question Of Essential Religious Practice Does Not Arise If Hijab Is Shown To Be Bonafide Practice In Muslim Women: Sr Adv Rajeev Dhavan Tells Supreme Court [Day-5]

Hijab Ban Forces Muslim Girls Out Of Schools, Violates Concept Of Fraternity : Sr Adv Huzefa Ahmadi To Supreme Court [Day 5]

Hijab Verdict Forces Muslim Girls To Choose Between Education & Religion : Aditya Sondhi To Supreme Court [Day 5]