State order on hijab ban not innocuous, targets one group, SC advised
Muslim appellants towards the Karnataka High Court order within the hijab ban case on Wednesday referred to as into query the state authorities order of February 5. 2022, and stated it was “not innocuous” as was being projected by the state however “targetted only one community”.
The authorities order (GO), they submitted, left College Development Councils with no choice however to ban carrying of the hijab.
Meanwhile, a bench of Justices Hemant Gupta and Sudhanshu Dhulia listening to the matter for the second day advised senior advocate Devadatt Kamat, showing for one of many appellant college students, that whereas the precise to decorate is inherent within the standing of a person, the argument that it’s a aspect of elementary rights can’t be stretched to “illogical lengths”, as that might recommend the precise to undress, too, is an element elementary rights.
Citing the April 2014 National Legal Services Authority vs Union Of India & Ors ruling, which got here within the context of third gender individuals, Kamat stated the courtroom had stated that “Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form.”
Justice Gupta responded, “You can’t take it to illogical lengths. Right to dress will mean right to undress also?”
“Nobody is undressing in school,” Kamat stated. “I am not making cliched arguments. I am making a nuanced argument only on the limited point”.
Justice Gupta stated, “Hypothetically, if you say right to dress is a fundamental right, then you can say that I don’t want to dress also…. It’s inherent in the status of a citizen. That’s it. That’s general.”
Kamat stated the purpose he was making an attempt to make is, “if it is an inherent part of my basic right, I am wearing a uniform and on top of it”.
Questioning the GO, Kamat stated what it dictates is “my (state’s) interpretation is that the headscarf is not an essential part of religion. So you decide. (The) Almighty state is telling a school development committee that headscarf is not a part of Article 25.”
Justice Dhulia requested if he was making an attempt to recommend that this was type of a number one query. “You say the school committees had no alternative after this?”
“Yes…nothing else remains. Let this part go,” Kamat stated.
The senior counsel additionally stated that the GO “offends positive secularism because it is targeting only one community”.
Justice Gupta identified that his interpretation “may not be right”. He added that “because one community wants to come with their headscarf…every other community is following the dress code”. He requested whether or not there was another violation by another group.
Kamat stated that in South India, completely different sections of the society, whereas carrying the uniform, additionally put on one thing as well as or show a sure diploma of spiritual identification even once they go to highschool. Pointing out that he himself used to show such an identification, Kamat added, “Somebody wears a rudraksha, somebody wears a cross.”
Intervening, Justice Gupta stated, “Rudraksha and cross are not displayed outside. They are under the shirt. Nobody is removing your shirt to find out what kind of a religious (belief you are following)…. So how does it bother? It’s a concealed thing.”
Kamat argued that the “concept of secularism accepted by SC is positive secularism — Ekam Sat Viprah Bahudha Vadanti (truth is one, the learned call it by different names)”.
Justice Gupta requested, “Is that statement that there is one God and different ways to achieve it accepted as true by all faiths in India?”
Kamat stated, “The question is not about violation of uniform but wearing, displaying something as part of your religious identity in addition to the uniform. And that is something which the state should be a little more generous in accommodating.”
He argued that the HC judgment in impact resurrects an modification proposed and rejected throughout the Constituent Assembly debates in search of prohibition on the carrying of any costume whereby faith of the individual might be recognised.
Justice Gupta stated, “The word secularism was not there in the original Constitution…. Even in the absence of the word, the Constitution was secular. It was only in 1976 we inserted the word secularism, although it may not be required, it is a political statement…. Secularism and socialism were always there. But we added (it) as a political statement…”
Kamat stated the GO “expressly uses the term public order” however the state Advocate General “conceded that it’s not based on public order…. The HC also conceded it’s not based on public order…. So public order is out. Then morality…. If I wear a headscarf, whose morality is offended?”
He stated the HC had acknowledged that forcing a woman to put on hijab will militate towards Article 14, however “nobody is forcing a girl to wear a hijab. If a girl exercises her right under the constitution, can the State prohibit it?…. This violates decisional autonomy and pro-choice jurisprudence, which SC has developed.”
Justice Gupta stated, “Nobody is prohibiting you from wearing hijab. You can wear it wherever you want. Only restriction is in school.”
Kamat responded that the HC had stated that even contained in the confines of the college, it’s towards constitutional morality. “With highest respect, it is her decision. If she wears it, who are we to question?”
The counsel stated the HC “compares a school environment…to a prison environment. It says prisoners don’t have fundamental rights. I’m amazed”
Justice Gupta identified that earlier rulings of SC had stated even prisoners have rights.
Objecting to Kamat’s submission, Karnataka Advocate General P Ok Navadgi stated “attributing to the High Court that students have been compared to undertrial detenues is something which I take exception to”. He stated he’ll clarify it later.
Kamat stated this isn’t a matter which is solely a violation of a statute or a rule, however includes a main query as as to if the State has failed in its obligation to offer for cheap lodging for a pupil’s proper beneath Articles 19, 21 and 25. He stated the query is whether or not a pupil citizen is anticipated to give up her elementary rights beneath Article 19, 21 and 25 as a precondition to entry training.
“The long and short of the argument of the other side is you exercise the right outside school. This argument came to be rejected in the Bijoe Emmanual case (national anthem case),” Kamat submitted.
He stated if the Supreme Court had accepted the argument of the college in that case, college students would have been shunted out.
The arguments remained inconclusive and can proceed Thursday.