Hijab and Rights

In February, 2022, protest erupted in Karnataka based school where in a co-ed the boys came out wearing Orange muffler and turban to protest against the culture of wearing Hijab and Niqab in School.
In no time this became the national news and schools (after a Karnataka Govt’s Order or GO), banned any sort of religious clothing along with the prescribed uniform. This order was challenge in the High Court of Karnataka where the H’ble court established that
“Hijab is not an essential part of Islam. Hence, it can’t be protected as a fundamental rights”

This decision was challenged in the Supreme Court.
This blog mainly talks about the critical questions asked by the Honorable Supreme Court on the Fundamental Rights and important submissions made by both the parties.

This blog contains some of my favorite arguments presented by various top lawyers in the Court.

Important questions in front of Honorable Supreme Court of India

1. What does the Holy Quran talk about Hijab?
2. Is the Govt Order (GO) issued by Karnataka Govt, banning any sort of religious attire along with school uniform, constitutionally valid?
3. Can a school authority restrict the religious freedom behind the school gate?
4. Can there be reasonable adjustment of Hijab in the School uniform?
5. On what grounds (health, moral or law and order) Hijab was banned?
6. Was the decision of High Court of calling Hijab “non essential” practice valid?
7. What was the need of the High Court to get into the Essential Religious Practices (ERP) debate?
8. Is the practice of wearing a Hijab protected under Article 29 as a cultural practice?
9. Are fundamental rights different on both sides of School gate?
10. Can we suppress someone’s Rights just because a section of people is going violent against them? (Heckler’s veto)

Advocate Pasha’s stance

Advocate Nizam Pasha says that HC went with the Quranic verse which says “Let there be no compulsion in Islam” which talks about forcing one to convert to islam (that there’s no compulsion to do so). But HC interpret it incorrectly and made a sense that Hijab is not compulsory. But the reality is way different.

Adv Pasha goes on to mention Chapter(Surah) 24 of Holy Quran which talks about Hijab (Khimar in Arabic). He mentioned that Surah 24 talks about covering their head and bosom and men to lower their gaze.

Adv Pasha then explains 5 pillars of Islam (Tawheed, Namaz, Roza, Zakat and Hajj). Justice Gupta asks then Hijab is not “mandatory”? Adv Pasha says “Its all word of God and the belief in the word of God”

Advocate Gonsalves’ stance

Adv Gonsalves says irrespective of essential or non-essentials, once the religion practice is estbalished, it is protected under Article 25. He mentions various international judgements where not just Hijab but other Indian religious practices were defended by the Court.

He asserts that HC’s analogy of comparing prisons with school is saddening. And it is a matter of forcefully “undressing” Muslim women.

Senior Advocate Dushyan Dave’s stand

Dave starts with qouting Dr Ambedker on a constructive social fabric by taking minorities in confidence. He goes on to say “this case is about malice in the law. It is a way to tell minorties do as well tell you to”

He mentions a constructive society of sharing thoughts and ideas and “..we have not hurt anyone’s sentiments by wearing hijab, our identity is Hijab”

Adv Dave mentions the marginlisation of Muslim community. And how a secular constructive society can be built with “reasonable accomodation”. He again mentions South Africa, Kenya and Canada top court’s judgements to defend different religious practices.

He says “We may like or not like it, but it is their right. We are no one to tell them this is essential and this is not”.

“You do not hurt anyone, that is the limit of religious Rights” — Sr Adv Dushyant Dave

Some other top arguments made by advocates in the favour of the Hijab

Adv Ahmadi : Even if it is found Hijab is not an essential religious practice, it will be a cultural practice protected under Artilce 29(1).

Kothari : Under Art 15(1), discrimination of religion does not require a threshold as high as essential religious practice.

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

Here, it is both sex and religion. It is the Mulsim girls who are specifically affected by this, not others. So there is an intersection under 15(1).

Here, it is both sex and religion. It is the Mulsim girls who are specifically affected by this, not others. So there is an intersection under 15(1). -Adv Kothari