Hijab Case- Sabarimala Judgment Was Pro-Choice; Constitutional Morality Is A Restriction On State Power : Sr Adv Kamat Argues In Karnataka HC

The Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi said it will conclude the hearing tomorrow and reserve judgment thereafter.

Today, it also heard Senior Advocate AM Dar for students of another college who were denied entry. It also heard Senior Advocate Guru Krishnakumar for the Respondents.

Kamat argued that people who want to wear head scarf are denied right to education on the pretext of this GO. "Their right to education which is paramount is being put on back burner. As a state you should facilitate and create an enabling atmosphere."

Opposing State's submissions on the aspect of Constitutional Morality, Kamat added that Sabarimala and Navtej Johar judgments that were cited by the Advocate General are "pro-choice" judgments. "Constitutional morality is pro-choice. It is a restriction on state power," he said.

He also made detailed submissions on the issue of Essential Religious Practice and protection under Article 25 of the Constitution. Details below.

Kamat pointed out that the State has failed to reply to the submission made by the Petitioners that they have been wearing headscarves since their admission, 2 years ago, and there was no objection to the same, until December 2021.

He stated, "I have not sought a general declaration for wearing of hijab. I have sought for quashing of the GO and for allowing the petitioners to wear. Second relief is consequential to the quashing of the GO."

He then submitted that the primary challenge is to the GO, which the Advocate General has given up to quite some extent.

It may be recalled that before the operative part of the GO, it contained a paragraph that observed that banning of hijab will not violate Article 25, after referring to a few High Court and Supreme Court judgments.

When the Bench inquired on these aspects, the AG hadconceded that the draftsman went a bit "enthusiastic". He further conceded that the reference in the GO relating to restrictions on hijab "could have been avoided".

In this backdrop, Kamat submitted,

"Much of my task as far as far as this GO is concerned has become very easy, because of the 90 percent of GO has been given up by the AG. It has been conceded.

Learned AG in all fairness on first day of opening has clearly said that this is not the purport of the order. He has said that it could be result of over enthusiasm and he has said it may be not required.

Firstly, none of those judgments cited are applicable. AG kept on saying till the end that he will explain those judgements, but they were not explained. According to me this part of the GO has to go.

Second, even if lordships were to discard the concession made by AG. This portion of the GO also has to go because it offends the doctrine of dictation in administrative law. AG says operative portion is innocuous but master is saying hijab is not essential.

Third, reason why this penultimate part has to go, apart from concessions and doctrine of dictation, is that there is no material. If the judgements are irrelevant, then what is the material to come to understand that hijab is not permissible."

He stated that the AG has given up the "public order" ground in the GO.

"In the affidavit the state say they are doing it on the ground of Public Order. There is a version of public order in the GO, given up by the AG in the arguments. A definition of Public order against the constitution is put. Is this the way a GO is framed?"

Next, he moved the issue whether the College Development Committee, also comprising of MLAs, has the jurisdiction to prescribe uniforms.

He stated that the challenge is not to the constitution of a the CDC, rather, the challenge is to the vesting of "executive functions" on the CDC, which are otherwise for the authorities under the Education Act.

"An MLA is not an officer subordinate to the state govt and that is covered by SC judgement in the case of Ashwini Kumar…As long as the CDC remains a Marga Darshak mandal, I don't have any problem. Let them remain as a guiding force. But the problem is when statutory functions are given."

How can you insist wearing of hijab inside an institution which has prescribed uniform? Chief Justice asks

Kamat argued that when a challenge is made that Article 25 right is violated, first issue the Court is required to look into is the restriction. Once there is a valid restriction or valid law, Kamat said, the second question arises, whether the law or order impinges on the right.

At this juncture, the Chief Justice asked Kamat how there can be an insistence on wearing of hijab inside the institution which has prescribed uniform?

"You are insisting to wear headgear inside an institution which has prescribed a uniform. Now you say that it is your fundamental right, you tell us what is that fundamental right...Forget what AG says, first you have to establish your right."

The Chief added that Article 25(2) is "reformatory power" given to the state.

Kamat then submitted that wearing hijab is a religious practice (not practice of conscience).

"If there is any case which fits in, it is Bijoe Emmanuel case. The question Supreme Court asked is not to the students show me if it is the essential practice. Supreme Court did not ask the students show me your right. Supreme Court asked where is the restriction.

State has inverted the law here. Essential Religious Practice is not a restriction on fundamental right under Article 25(1). ERP is a restriction on the State's power to interfere with the religious practice. The question therefore which should fall is where is the restriction."

Here, Justice Dixit told Kamat: "You have come to the Court saying your rights are infringed. When we speak of restriction, it is in reference to a right which has been allegedly infringed. This is the context in which we see things."

Kamat responded,

"Article 25(1) is not a restrictive paradigm, the canopy and width of rights is not capable of being put in a straight jacket formula. If I say there is violation, there should be first a restriction. I am saying not permitting to wear head scarf is infringement."

He contended that Education Act is not an Act for reform of religion within the meaning of Article 25(2).

"There is no judgment which talks of an accidental infringement by an alien act. Education Act and Uniform rule cannot be a measure of social reform in the context of Article 25(2). Restriction must have a direct relation to the object sought to be achieved. If the object is to say that hijab a regressive practice, it has to be evident from the plain reading of the (Education) Act and the rules made thereunder."

Kamat mentioned that an amendment was moved during the Constituent Assembly Debates to say that no visible signs of religion should be displayed in public. However, this was expressly rejected by the framers of the Constitution.

"State is now trying to resurrect this. This is not permissible…Then Constitutional morality is cited. This is again inverting our rights jurisprudence. Constitutional morality is not restriction on fundamental right but it is a restriction on states powers."

He added that Sabarimala and Navtej Johar judgments that were cited to assert constitutional morality by the AG are "pro-choice" judgments.

"Constitutional morality is pro-choice. It is a restriction on state power," Kamat said.

In response to the argument that hijab is a regressive practice, he said that wearing of headscarf is diversity.

Responding to the arguments made by college that if hijab is permitted, students from other religion will also insist on displaying their religious symbols, Kamat said, "In constitution jurisdiction, we cannot decide on hypothesis but on facts."

Referring to the Turkish judgment cited by Senior Advocate Sajan Poovayya yesterday, upholding scarf ban, Kamat pointed out that the said decision has been overruled.

Lastly, he submitted that wearing hijab is an Essential Religious Practice. "There is no valid restriction. In the absence of valid restriction for the court to go into the arena of ERP is not required.

He contended that the Respondents have not disputed the two judgments of Kerala High Court, which held hijab is essential, and the Madras High Court judgment which held burqa is not but headscarf is an essential practice.

"I have cited three judgements that hijab is ERP of Islamic religion. I submit that GO which is the basis for our action before our lordships is illegal, there is no valid restriction for exercise of Article 25," Kamat added.

He referred to Justice Kurian Joseph's judgment in the Triple Talaq case to say what is mentioned in Quran has to be followed. Second source is Hadith. Hadith is as authoritative as the Quran itself. Hadith stands on the same footing as the Quran as per Justice Nariman's judgment in Shayara Bano case.

Responding to State's argument that the source of Quran cited by Petitioners is not authorized, Kamat said,

"Quran.com is a compilation of various authors including Syed Yusf Ali. It is not an unauthorised translation."

He referred to a few verses in the Quran that refer to Khimer.

"Khimer is not a hijab," the Chief Justice said.

Kamat responded, "Khimer is a veil, it is like a ghoongat."

Submissions on Quran

Senior Advocate AM Dar, appearing for students of New Horizon college, allegedly denied entry for wearing hijab. Dar claimed that it is a govt aided institution, whereas the AG claimed that it was his alma mater, and a private college.

Nevertheless, Dar sought to assist the Bench with respect to interpretation of the Holy Quran, claiming that he has studied Arabic.

He claimed that hijab is the last commandment from Allah and is mandatory in Islam. Even the wives of prophet would wear it, he said.

Dar submitted:

"Even during Haj, covering of head by women is not exempted by the prophet. Whatever prophet has said is binding, how can we ignore. Then we are not Muslims. This is command from Allah. If we have to lead a good life, we have to follow it. Day of the judgment we have to face. Therefore, we advise our sisters, mothers and daughter to wear it."

He continued,

"Hijab word is not there in Quran: The terms refers to partition, in the literal meaning it is some kind of partition. Hijab is mandatory. I will read the suras (Sura Ghashiyah, Sura Izra).

You have to cover head, face and chest to protect modesty and protect all Muslim values. We are not saying we will go in burqa to school. We are covering only the head, face and chest. These are vulnerable parts so that there is no attraction, no attack by unrighteous people and their eyes stay away. Wearing of hijab is a command from the Allah."

He added:

"We are all sons of Indian soil. We are living in a country governed by rule of law. This (Hijab) is sacred for us. It is not by fashion that we are asking the women to wear it, it is mandatory in Quran. Quran has said cover your sisters and daughters… We are in a democratic country, will a head scarf lead to public order?"

Constitutional Morality

Coming to the constitutional aspect of the matter, Dar submitted that the Petitioners' rights are protected under the Preamble to the Constitution and Article 25.

It may be recalled that the State has argued that mandating women to wear headscarf cannot stand the test of individual dignity and constitutional morality laid down by the Supreme Court in Sabarimala case.

Today, Dar argued that wearing scarf rather enhances the reputation and modesty of women by covering their vulnerable parts like face and chest. "Scarf is not causing any problem to morality. Rather, it enhances morality," he said.

"If same scarf identical to uniform is worn, what heavens will fall? If you put in a scarf, how can it affect public order. If you desecrate the idols, it can hurt feelings and cause public order problems. But how can covering cause public order problems?" he asked.

He concluded saying,

"This is cause of life and death for us. Either we will have to leave our education or our principles. Please come heavily on the state. How can they pass this Govt Order."

Plea by All India Democratic Women's Association dismissed

The High Court refused to entertain a petition filed by the 'All India Democratic Women's Association'. It stated,

"In this manner we cannot allow you to espouse to cause of persons who are already before the court. GO is restricted to students and those aggrieved students are before the court, it is not for everyone to come before the court.

Aggrieved persons are represented by very-very competent lawyers, so if you want to add anything, assist them."

Senior Advocate Kirti Singh appearing for the Association submitted that he wishes to argue on grounds of Equality, Article 14 and 15. He further stated that the burden of satisfying that the impugned GO satisfies the conditions of Article 19(2) is on the State.

"This is a matter of national importance; girls are wearing only hijab why they are not permitted. Right to education of the girl is being interfered with. I wanted to bring in whole spectrum of rights these girls are entitled to."

However, the Court remarked that all these aspects have been argued before it by the Petitioners.

It was further of the opinion that when the aggrieved persons are represented, in such circumstances the petition may not be maintainable. "We are not satisfied with the maintainability of your petition. We will pass order."

Arguments on behalf of Udupi PU college lecturer

Senior Advocate Guru Krishnakumar, appearing for respondent no 8, a lecturer in the Udupi PU college, argued that the objective of prescribing a dress code is to bring in uniformity and bring about non-discriminatory treatment of students.

"We are dealing with activity which is in a secular place. The moment a student comes to education institution and partake in imparting of secular education…The regulation (impugned GO) brought in would have to be tested on the anvil of object of non-discriminatory treatment of students pursuing secular education in a secular space."

He added that the College regulations are dealing with activities of petitioners which are not religious, but an activity which is secular-education.

Krishnakumar further submitted that the grievance of petitioners is premised on the ground that wearing of hijab is part of essential religious practice protected by Art 25. However, the nature of jurisdiction exercised by Constitutional courts in such matters is not an "ecclesiastical jurisdiction".

"It is only due to Constitutional necessity that the Court gets into it. And there are limitations for the Court in doing that."

Reliance was placed on Supreme Court's decision in Adi Saiva Sivachariyargal v. Govt. Of Tamil Nadu & Anr. (AgamaSastra case).

It may be recalled that the Petitioners have contended that the Education Act does not make provision for prescribing uniforms. Refuting the same, Krishnakumar referred to Section 7 of the Act to state:

"The purpose of prescription of dress code is to bring about equalization and equality in a common platform. The Act recognizes this and allows Schemes for such purposes."

On the aspect of freedom of expression under Article 19(1)(a) of the Constitution, Krishnakumar said,

"there can be speech and non-speech components to the article. This activity can be regulated by non-speech component. There can be regulation of non-speech activity. Bennet Coleman case recognizes this."

He concluded saying that the impugned GO does not intend to interfere religion per se. It is only related to education.

Case so far