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Rule of Law Minorities

What is not obligatory is not essential: AG in Hijab ban case

He argued that if wearing hijab is freedom of expression that means it is optional and not obligatory

Sabrangindia 24 Feb 2022

Hijab case

During the February 22 hearing of the hijab ban case, the Advocate General continued to make submissions, and a few other lawyers also made submissions for a few other respondents, including some teachers and the Pre-University College where the entire controversy began. The bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi heard the arguments.

Submissions of Advocate General

Advocate General Prabhuling Navadgi said that it was for the petitioners to prove what is compulsory to be followed. He argued, “It is for the petitioners to demonstrate beyond doubt as to what is compulsory to be followed. What is optional is not compulsory; what is not compulsory is not obligatory; what is not obligatory is not essential.”

He also submitted that claiming Article 19(1)(a) right is destructive to Article 25.  Article 25 right is for compulsory practice. “When you assert Article 19(1)(a), it means choice. Article 25 has an element of compulsion as far as dress is concerned. The consequence of a declaration of a court in ERP is that every member of the community is bound to abide,” he argued, adding that if wearing Hijab is under freedom of expression then Rule 11 imposes upon them a reasonable restriction on wearing a particular headgear.

He further said, “If somebody is to come before lordships seeking a declaration, that we want every woman of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating.” He further submitted that this is more a concept of liberty of that individual person. There cannot be a religious sanction by way of judicial declaration. This is not a question of school or college but the entire community.

He referred to a paragraph from J Chandrachud's judgment in Sabarimala case:

"Once individual dignity assumes the character of a shining star in the constellation of fundamental rights, the place of religion in public places must be conditioned by India’s unwavering commitment to a Constitutional order based on human practices which are destructive of liberty and those which make some citizens less equal than others can simply not be countenanced."

Petitioners submission based on compulsion

He had also submitted before the Court that dignity involves liberty; liberty involves choice. The entire submission of Petitioners is based on compulsion. The entire claim of Petition is to make compulsion; it goes against the fundamental ethos of the Constitution. There is no prohibition of hijab anywhere. But it cannot be compulsory; it should be left to the choice of the women concerned. In military service somebody had sought enforcement of individual rights. This was for growing a beard. The Court held it in the negative. 

Private unaided institutions

The Advocate General submitted that as far as private unaided minority institutions are concerned, the Government is not interfering with the uniform code and has left it to institutions to decide. He concluded his arguments for the day by making a statement for a large number of Petitioners who represent women organisations, “Dignity of the women must be kept in mind.”

Senior Adv. R Venkataramani's submissions

Senior Adv. Venkataramani, representing teachers who are made respondents submitted before the Court that any measure on the part of the State or the school to bring in discipline, where everyone comes together for learning. He said, “School is a qualified public place, every public space will have its own dimensions and therefore public order will be relevant. It cannot be seen in a generic or abstract state. India as a nation has been culturally pluralistic. Even a breach of order in a small place becomes a question of public order. It is now not just in Udupi. It has gone to the entire country.”

Senior Adv. S Naganand's submissions

Senior Adv. Naganand, representing Government PU college, principal and lecturer submitted before the Court that it is an entirely girls school. Girl students of the petitioners were not in the habit of wearing hijab previously. However, occasionally, some parents of Muslim girls used to enquire if wearing of hijab is permissible. Further, the parents of Muslim girl would request the teachers to ensure that their daughters are not involved in singing, dancing, music and other extracurricular activities.

He also submitted that in south India, Hindus when they get married there is no system of managalsutra. “This is culture. It has nothing to do with religion. In south India toe rings are worn. It is not part of religion. There is a distinction between essential religious practice and cultural practice essential to religion. Wearing of headscarf is not Essential Religious Practice. I adopt what the Advocate General has said,” he submitted.

The bench before rising disposed off  the writ petition filed by Karnataka State Minorities Educational Institutions Management Federation recording the AG's statement that State is not interfering with minority "unaided"  institutions.

The video of the hearing may be viewed here:

 

Related:

K’taka HC to consider mediation only if parties agree to it

Take down Fake News story on bombing in Bengal school: CJP to News18

Karnataka: Minority dept bars hijab, saffron scarves in govt schools, PUs

Hijab Ban: Identity politics or body policing?

What is not obligatory is not essential: AG in Hijab ban case

He argued that if wearing hijab is freedom of expression that means it is optional and not obligatory

Hijab case

During the February 22 hearing of the hijab ban case, the Advocate General continued to make submissions, and a few other lawyers also made submissions for a few other respondents, including some teachers and the Pre-University College where the entire controversy began. The bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi heard the arguments.

Submissions of Advocate General

Advocate General Prabhuling Navadgi said that it was for the petitioners to prove what is compulsory to be followed. He argued, “It is for the petitioners to demonstrate beyond doubt as to what is compulsory to be followed. What is optional is not compulsory; what is not compulsory is not obligatory; what is not obligatory is not essential.”

He also submitted that claiming Article 19(1)(a) right is destructive to Article 25.  Article 25 right is for compulsory practice. “When you assert Article 19(1)(a), it means choice. Article 25 has an element of compulsion as far as dress is concerned. The consequence of a declaration of a court in ERP is that every member of the community is bound to abide,” he argued, adding that if wearing Hijab is under freedom of expression then Rule 11 imposes upon them a reasonable restriction on wearing a particular headgear.

He further said, “If somebody is to come before lordships seeking a declaration, that we want every woman of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating.” He further submitted that this is more a concept of liberty of that individual person. There cannot be a religious sanction by way of judicial declaration. This is not a question of school or college but the entire community.

He referred to a paragraph from J Chandrachud's judgment in Sabarimala case:

"Once individual dignity assumes the character of a shining star in the constellation of fundamental rights, the place of religion in public places must be conditioned by India’s unwavering commitment to a Constitutional order based on human practices which are destructive of liberty and those which make some citizens less equal than others can simply not be countenanced."

Petitioners submission based on compulsion

He had also submitted before the Court that dignity involves liberty; liberty involves choice. The entire submission of Petitioners is based on compulsion. The entire claim of Petition is to make compulsion; it goes against the fundamental ethos of the Constitution. There is no prohibition of hijab anywhere. But it cannot be compulsory; it should be left to the choice of the women concerned. In military service somebody had sought enforcement of individual rights. This was for growing a beard. The Court held it in the negative. 

Private unaided institutions

The Advocate General submitted that as far as private unaided minority institutions are concerned, the Government is not interfering with the uniform code and has left it to institutions to decide. He concluded his arguments for the day by making a statement for a large number of Petitioners who represent women organisations, “Dignity of the women must be kept in mind.”

Senior Adv. R Venkataramani's submissions

Senior Adv. Venkataramani, representing teachers who are made respondents submitted before the Court that any measure on the part of the State or the school to bring in discipline, where everyone comes together for learning. He said, “School is a qualified public place, every public space will have its own dimensions and therefore public order will be relevant. It cannot be seen in a generic or abstract state. India as a nation has been culturally pluralistic. Even a breach of order in a small place becomes a question of public order. It is now not just in Udupi. It has gone to the entire country.”

Senior Adv. S Naganand's submissions

Senior Adv. Naganand, representing Government PU college, principal and lecturer submitted before the Court that it is an entirely girls school. Girl students of the petitioners were not in the habit of wearing hijab previously. However, occasionally, some parents of Muslim girls used to enquire if wearing of hijab is permissible. Further, the parents of Muslim girl would request the teachers to ensure that their daughters are not involved in singing, dancing, music and other extracurricular activities.

He also submitted that in south India, Hindus when they get married there is no system of managalsutra. “This is culture. It has nothing to do with religion. In south India toe rings are worn. It is not part of religion. There is a distinction between essential religious practice and cultural practice essential to religion. Wearing of headscarf is not Essential Religious Practice. I adopt what the Advocate General has said,” he submitted.

The bench before rising disposed off  the writ petition filed by Karnataka State Minorities Educational Institutions Management Federation recording the AG's statement that State is not interfering with minority "unaided"  institutions.

The video of the hearing may be viewed here:

 

Related:

K’taka HC to consider mediation only if parties agree to it

Take down Fake News story on bombing in Bengal school: CJP to News18

Karnataka: Minority dept bars hijab, saffron scarves in govt schools, PUs

Hijab Ban: Identity politics or body policing?

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