66-Year-Old Women Files Plea In Apex Court Challenging Karnataka High Court Verdict

(Judicial Quest News Network)

A 66-year old woman has filed a plea in Apex Court challenging the Karnataka High Court’s Hijab judgement which held that Hijab is not an essential religious practice of (ERP) of Islam and, thereby, upheld the power given to colleges to ban wearing of hijab in college campus.

The petitioner a hijab wearing women herself has submitted that she wasn.t given a chance to be heard by the High Court thereby violating her right against arising of principle of orality.

Principle of orality.

However, later despite pressing the application and urging the High Court to hear the applicants-interveners and applicant-impleading parties, the High Court did not implead them and did not allow them to urge their arguments and submissions.

Consequently, the impugned Order suffers from a reasoning deficit and it is respectfully submitted that had the applicants like the Petitioner been heard, the High Court would have fulfilled its obligation of compliance of natural justice in adversarial proceedings which has not been done in the present case. Without prejudice to the rights of the Petitioner herein to argue that its valuable right arising of principle of orality had been violated, the Petitioner herein had filed written submissions before the High Court which have not been considered or adverted to anywhere.

The Special Leave Petition has been filed through Advocates Talha Abdul Rehman,Mohammed Ateef,Basava Prasad Kunale, M.Shaz Khan and harsh Vardhan Kediya.

It is further pointed out that however, till today no directions has been issued by any school or authority that hijab or any other clothing protecting modesty is inconsistent with prescribed uniform.

While graphically setting out the various forms of clothings worn.

It is further submitted that High Court did not consider the impact of the gamut of rights involved in the present case and Article 25 is subject only to public order morality and health and to other provisions of this part and taking away of the right to wear hijab does not fall in any other of three categories.

Anti-Subordination test has not been applied: The denial of head scarf / Hijab or worse forcing young girls to take off articles of clothing that they connect with modesty and religious values amounts to State-sanctioned indignity and is a violation of a gamut of human rights, and the same subordinates them as a group including the Petitioner who are wears hijab out of sincere belief of the mandatory prescription in Islam ± for whose violation she believes she would be accountable on the Judgment Day . It is respectfully submitted that the same amounts to humiliation proliferated by the Government, which breaches the principles embodied in Article 17 and Article 22 of the Constitution. The same affects irreparably and damages the psyche of young girls wanting to benefit from the education at colleges. That it is submitted that when either the text RUHIIHFWRIWKHODZLVWRµGHPHDQ¶SHRSOH it amounts to subordination which is contrary to Article 14 and Article 17 of the Constitution of India. That the effect of the impugned Government Order dated 05.02.2022 is that it results in a violation of the fraternity principle of the Constitution. States the petition.

Unity in Diversity under the Constitution of India: It is submitted that diversity is important for classroom and a classroom that cannot allow or show the diversity of India actually fails to educate, and achieve the Constitutional objective. The impugned order does not appreciate that Government Order is also against the doctrine of non-retrogression, in that PUC colleges in question allowed and did not insist on uniform (including the exclusion of hijab), they cannot now dilute the advances made in including various groups and accommodating their practices.

In the present case, the teenage girls covering themselves modestly while going to receive education pose no threat to public order. In fact, the threat to law and order is manufactured by hecklers who are to be controlled by the State. The impugned Government Order would affect young girl’s minds forever.

The High Court has declined to apply the tests applicable to restrictions on the fundamental right to freedom of speech and expression, and fundamental right of privacy

In the present case, the Petitioner, as a woman, had insisted and invoked the right to dress modestly, and the right not to be subjected to removal of a piece of clothing that women relate to modesty.

The issue of dressing up modestly by wearing a hijab being essential religious practice comes only as the last resort, and before that the right to wear hijab arises out of Articles 14, 15, 17, 19 and 21 of the Constitution. Notably, in view of concession of the Ld. Advocate General, the issue of essential religious practice did not even survive. The burden of proof when a violation of Article 19 and Article H 21 is alleged is upon the State, and not upon the Petitioners before the High Court. It was for the State to demonstrate by cogent material (i.e. pleading and evidence) that the restriction on hijab or removal of a piece of clothing of woman that she considers as guarding her modesty was necessary in public interest and justifiable under Articles 19 and 21.

 Argument on behalf of public order not considered  the petitioner has argued that even for Article 25 restricytion, the State Government had lead or shown no material on imminent threat to public order Despite being argued and urged, the High Court did not  consider the distinction between public order and law and order.

The petitioner has further submitted that Harm Principle not invoked and the Hogh Court erred in not appreciating that unlike other practices, the practice or wearing hijab does not cause any harm to anyone. In that sense, wearing of hijab also satisfies the de-minimis principle which the court has invoked for non-studs to distinguish the South African Judgement.

The petitioner further pointed out that issuance of the impugned GO is manifestly arbitrary as per the formulation in Shayra Bano V. Union of India (2017).

The State has not adequately answered as to why is one religious symbol being restricted while others are being allowed. Such a net result is manifestly arbitrary and hence violative of Article 14 of the Constitution.