Hijab Case-School Students Not Part of Regimented Forces Requiring Strict Disciplinary Measures: Dushyant Dave To Supreme Court

He submitted that the High Court erred in testing the legality of wearing hijab in public places on the touchstone of 'essential religious practice'.

He added that hijab adds to the dignity of Muslim women, is a protected right under Article 19 and 21 of the Constitution, and does not disturb public order or hurt religious sentiments of others, so as to attract reasonable restrictions.

Read Dave's previous arguments here.

The hearing is underway. Solicitor General Tushar Mehta is arguing for the Respondent-State. Live updates here.

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Test is not essential religious practice, but religious practice: Dave

It is Dave's argument that the test is not that of essential religious practice, but religious practice. In this regard, he relied heavily on Tilkayat Shri Govindlalji v. State of Rajasthan.

In that case, the Court wondered how it could decide what is an essential religious practice if there are two sets of beliefs within a community. For instance,

"if in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question?"

The Constitution bench observed that in such cases, the usual test 'whether the practice is regarded as essential by the community' would "break down".

"Everybody looks at Lord Almighty in different ways. Those who to Lord Ayyappa in Kerala, they go in black dress...look at our Kanwariyas, today they walk with music vans and dancing to Lord Shiva...everybody has right to enjoy religious freedom in the most personalized way…You don't hurt anyone, that is the limitation to religious right," Dave argued.

Yesterday, Justice Dhulia had asked Dave whether the Shirur Mutt case, which rejected the argument of essential religious practice test, was in the context of Article 25(2)(a).

Addressing the query, Dave responded that 'Religion' was defined for the first time in Shirur Mutt case and thus, the definition applies both to 25(1) and 25(2). "Therefore, the Court's rejection of essential religious argument must apply with equal force to Article 25(1)," he said.

Dave then cited the Constitution bench judgment in Sardar Syedna Taher Saifuddin v. State of Bombay, which struck down Bombay Prevention of Excommunication Act, 1949 on the ground of violating Article 25, 26.

In this case, Justice Iyyengar held that essential part of a religious includes practices which are regarded by the community as a part of its religion.

"In the face of the language used, no distinction could be drawn between beliefs that were basic to a religion, or religious practices that were considered to be essential by a religious sect, on the one hand, and on the other beliefs and practices that did not form the core of .. a religion or of the practices of that religion. The phraseology employed cut across and effaced these distinctions," it was held therein.

At this juncture, Justice Gupta asked if Justice Iyyengar was in majority.

Dave informed that he was and added that concurring opinion of a judge in majority judgment is binding.

"What is this leading to?" Justice Dhulia then asked.

Dave responded, "That essential religious practice was never a ground for judicial pronouncements. Essential practice was used in the context of making a distinction between religious and secular acts."

He mentioned that Justice Chandrachud and Justice Nariman had also taken note of the confusion created by essential religious practice in the Indian Young Lawyers Association case (Sabarimala case).

Article 25 contemplates religious tolerance: Dave

Dave argued that Article 25 is an article of tolerance. In this regard, he referred to the Bijoe Emmanuel case where it was held that "Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country's Constitution."

Dave said that the Bijoe Emmanuel decision is also relevant insofar as it interprets the Kerala Education Act, which is pari materia with the Karnataka Education Act.

"If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine religious objection, then such compulsion would clearly contravene the rights," Dave emphasized from the judgment.

He argued that uniform is an "unnecessary burden" on the majority section of the society. "Many people don't have the money to buy uniforms," he said.

However, Justice Gupta responded that uniform is a "leveler" to avoid disparity. "Your richness or poverty can't be made out from the uniform."

Constituent Assembly Debates relevant to understand the intent of Constitution: Dave

Yesterday, Dave made elaborate submissions on religious and cultural diversity of India and the Constituent assembly debates.

Justice Gupta today remarked that the opinions in the Constituent Assembly were "individual opinions".

"After that, they have given us the Constitution. So are the individual opinions important?" he asked.

Dave responded that they are important to the extent of understanding the thought process of the Constitution framers.

"I am not for a moment saying that they are fixed but they help us understand the thought process and to that extent they are important. To understand their intent, and mindset."

He relied on Kesavananda Bharti case, where it was held that Constituent Assembly Debates, though not conclusive, can throw light on the intention.

Justice Gupta pointed that the Constituent Assembly had 240 members and each member represented one opinion. "Can it be taken as a collective view? We have to go by the definition finally given by the Constitution..."

Dave responded that Article 25 is clear and the Constituent Assembly debates cement that conclusion.

"The learned judge (Karnataka HC) has completely ignored the Shirur Mutt judgment principles…It is a completely incorrect conclusion by the High Court relying on some out of context lines from Young Lawyers. And even if assuming HC is right, Young Lawyers is pending review. Normally, the practice is if a judgment is before larger bench, lordships will not touch the judgment."

Dave further contended that Young Lawyers case (Sabarimala) was an opposite case— it was a case where the right of women to enter temple was prevented on certain tenets.

Whose rights are violated by women wearing Hijab? Dave asks

Referring to the restrictions on the rights guaranteed under Article 19, Dave argued that Public order is the only ground which comes into play in the present case. He relied on Superintendent v. Ram Manohar Lohia, where it was held that Public order is synonymous with public peace, safety and tranquility.

"So, this ground is not available to the State. Nobody's peace is violated, safety is violated and tranquility is violated… How can the High Court say rights are violated? The women want to wear hijab. Whose rights are violated? Other students' rights?"

He then referred to IR Coelho judgment and the Maneka Gandhi case to submit that Article 14, 19 and 21 can apply together.

"Article 21 has a facet of dignity. Dignity is important in the case. Hijab adds to the dignity of the woman…Like, how a Hindu woman covers her head, it is very dignified."

"The definition of dignified has changed a lot, and keeps changing," Justice Gupta said.

Why did State suddenly bring this prohibition after 75 years? Dave asks

Elaborating upon his argument about 'marginalisation of minority community', Dave asked what was the need for the State to suddenly bring this prohibition after 75 years, particularly in view of the earlier circular which was against the uniform.

"The circular came like a bolt from the blue. There have been a series of facts which show that minorities are being attacked in Karnataka. Even if a Muslim wants to sell outside a temple, he will be thrown out," Dave said.

"There are no pleadings, this is not a public platform," Solicitor General objected.

"These are all reported by newspapers, no pleadings are needed," Dave responded.

The bench then asked Dave to restrict the arguments within the scope of record.

Dave then mentioned to "Sulli Bai" and "Bulli Bai" cases on the point of marginalization of minority. However, Justice Gupta pointed that both of those cases were from Maharashtra, not Karnataka.

School students not part of regimented forces requiring strict disciplinary measures: Dave

Dave submitted that there is a judgment of Kerala High Court which supports the petitioners. This judgment was not been appealed against by the Union and has a strong persuasive value, he said.

Nonetheless, he added that the impugned Circular mentioned three judgments which restricted hijab in different context.

"Why suddenly after 75 years this prohibition? There is no basis for the circular. Circular definitely suffers from malice...see the Karnataka Education Act. Is it the purpose of the Act?... The Circular has no basis to stand and law is clear, executive circular cannot travel outside the ambit of the Act. The Circular's reference on the High Court's judgments are out of context."

One of such judgments referred in the circular was about a Muslim girl in an all-girls school, the other one was about a convent school, the third one had no discussion about hijab.

Referring to a Supreme Court decision which held that an airman cannot keep beard as part of Islamic faith, Dave submitted,

"There the entire stress is on disciplined force in Air Force…11th and 12th standard students are not part of regimented forces, they are students they must be in a liberal environment, and we are wearing uniform, wearing hijab in the color of uniform."

Background

If A Muslim Woman Thinks Wearing of Hijab is Conducive for Her Religion, No authority Can Say Otherwise: Dushyant Dave To Supreme Court [DAY 7]