Fundamental Rights, Privacy, Culture: Arguments on Day 4 of Hijab Hearing in SC

The Hijab hearing in the Supreme Court reached its fourth day of arguments on Monday, 12 September.

(Photo: Altered by The Quint/Chetan Bhakuni)

The hijab hearing in the Supreme Court reached its fourth day of arguments on Monday, 12 September.

The batch of petitions filed by female students challenging the ban on hijab in Karnataka educational institutions is being heard by a bench of Justices Hemant Gupta and Sudhansu Dhulia.

Senior Advocates Yusuf Mucchala and Salman Khurshid argued before the court on Monday.

Fundamental Rights Violated: Sr Advocate Mucchala

“We have given instances of denial of entry for people for wearing hijab. This is a denial of access of education," Mucchala submitted before the top court, according to LiveLaw.

On being asked by Justice Dhulia if his main argument was that donning hijab is an essential religious practice, Mucchala replied:

“My argument is that it is my right under Articles 25(1)(a), 19(1)(a), and 21, and on a conjoint reading of these rights, my fundamental rights are violated.”

Thereby, he went on to explain that by banning hijab, the petitioners’ rights to education, personal dignity, privacy, and their right to practice religion have all been violated. “And the doctrine of proportionality has been completely ignored," Mucchala said.

When Justice Gupta pointed out that the high court had said right to conscience and right to practice of religion are mutually exclusive, Mucchala submitted:

“Both rights are guaranteed by Constitution…There are atheists, agnostics. Some believe in universality of all religions. There are several individuals, and Constitution has given two rights. They are not exclusive, they complement each other.”

Thereby he went on to cite the apex court’s Puttaswamy judgment as observing that validity of the State’s act must be seen on the impact of the State's law.

“Here (in Karnataka), the State says the objective is to promote positive secularism. But what is the impact? The object might be noble, but the effect has to be seen,” Mucchala argued.

Mucchala also quoted the Puttaswamy judgment as saying:

“Dignity cannot be separated from privacy. Privacy is the ultimate constitutional value for an individual. The choice of appearance are aspects of privacy.”

'Court Should Not Lay Down Religion,' Says Mucchala; SC Asks What Choice Did HC Have?

Further, he argued that “Constitution clearly provides that Court should not lay down religion for people to follow…”

To this, the court, according to Bar and Bench said:

“You went to court and said this is an essential religious practice. What option does the high court have but to point it out? Now you say high court cannot do this."

But Mucchala maintained:

"It is only judicial wisdom to not touch a field in which they have no expertise. High court when encountered with ERP should have said 'hands off we cannot look into that'."

'Wearing Hijab Can Be Seen as Religion, Concience, Culture, Individual Dignity and Privacy': Salman Khurshid

Meanwhile, Senior Advocate Khurshid argued that revelations in Quran are the word of God, and thus mandatory.

On being asked by Justice Dhulia if hijab, in Khurshid’s view, was essential religious practice, the latter, according to LiveLaw, said:

“It can be seen as religion, it can be seen as conscience, it can be seen as culture, it can be seen as individual dignity, and privacy.”

Thereby he went on to point out that Indian jurisprudence recognises culture as well as religion.

“The idea of unity in diversity comes from this preservation of composite culture,’’ he added, as he submitted that the high court had quoted fundamental duty under Article 51A(h), but had ignored 51A(f) which speaks of preserving "composite culture".

During the course of the hearing, Khurshid handed copies of the Holy Quran to the judges, but was reportedly told by Justice Gupta:

“With due respect, we will not like to keep the Holy Book. You may give us the print outs of the relevant verses.”

Among other arguments, Khurshid also quoted from the Puttaswamy judgment and said: “Choice of apparel and appearance is also an aspect of privacy.”

Thus, he argued that they will not say that the uniform ought to be dispensed with, but that there is something in addition with the uniform that should permitted.

The matter is slated for further hearing on Wednesday.

(With inputs from LiveLaw and Bar and Bench.)