Hijab ban: State linked PFI to prejudice case, SC says

Muslim appellants who had contested the Karnataka hijab prohibition before the Supreme Court on Thursday objected to the state government’s linking of protests against the ban to the Islamic group Popular Front of India ( PFI) and claimed it was done to hinder their cause.

The Justices’ bench composed comprising Justices Hemant Gupta and Sudhanshu Dhulia concluded the hearing and reserved its verdict for Thursday.

“I regret to say that the Solicitor General raised that issue,” senior advocate Dushyant Dave, appearing for several appellants informed the court. “It is not an issue that is important for the decision here. I regret that due to him (S-G Tushar Mehta) raising it all the media picked the issue up.”

The senior advocate Huzefa Ahmadi also took exception to the State’s invocation of PFI’s name. He said that the matter wasn’t argued in the High Court, and is not mentioned on the notice.

The bench said, “the High Court deals with it”. Ahmadi said that it was “one line”.

In pointing out that the State was conscious of not filing a counter-reply prior to SC and argued that, “If they want to be relying on something, they can’t make it official. They first made it clear that they didn’t intend to make an appeal, and ….now in order to introduce facts that do not belong in the record in any way before the court…by declaring that there is an all-encompassing conspiracy.”

Declaring that it was “nothing in the circular with regard to PFI”, Ahmadi declared that the issue is “sought to be introduced only…to prejudice”.

The reference was to Mehta’s assertions that protests against the wearing hijab were “not spontaneous” but were “part of a larger conspiracy”. Mehta had stated the following “at least from 2013, nobody was deviating from the prescribed uniform, which did not include hijab”.

He claimed the following “in 2022, a campaign was launched through social media by an organization known as”the Popular Front of India and the movement according to suggested by the FIR that was filed later indicated — was intended to provoke an uproar based on the beliefs about the religion of the people and, as a result of it, there were constantly social media messages (to) begin wearing hijab …”

Dave tried to connect the comments made on Wednesday from an SC bench led by Justice K M Joseph about the alleged spread of hateful speech via visual media.

He added it was because “Justice Joseph’s bench yesterday rightly remarked…they have now started hearing a matter as to how media is used by political parties to spread hatred in the country”. He claimed that, following Mehta’s remarks “electronic media, print media, everybody…the headline was Popular Front of India, although it is not part of the arguments at all”.

Justice Gupta pointed out that Mehta made this statement when he was providing the context.

Dave stated that the state’s “circular” under challenge “doesn’t refer to that”. He also said, “You cannot bring something that is beyond the circle. It’s totally wrong.”

Dave was also seeking to challenge the state government on an earlier circular in which, he claimed the state government had stated that uniforms are not a requirement.

Contrary to the state government’s assertion that the document is not substantiated the lawyer said that it was stated in the counter-affidavit that was filed prior to HC. “Solicitor General has stated that it is not substantiated.. My argument is that it’s been confirmed through their own admissions in the High Court. What do you mean by disowning your own rules by saying that? You’ve issued them consciously,” Dave said.

The bench noted that the next circular will “supersede” the earlier one.

In disagreement, Dave said the earlier circular mentioned that wearing uniforms is not mandatory and claimed it is not mandatory and that “there is no question of it superseding the earlier guidelines”.

However, Justice Dhulia said “it does” and said she said that “the February 5 Government Order takes care of this also by saying that in the event the management [of the educational institution] does not mandate a uniform, students should wear clothes that are in the interest of unity, equality and public order”.

Contrary to Dave’s argument the Additional Solicitor General K M Nataraj also said the guidelines “do not confer any type of legal rights on anyone. These are only guidelines. This cannot override any legal notice …”

The judge requested Dave whether it was his contention that no uniform was required for students in the school year 2021-22. The senior counsel replied, “It’s not our case. Our argument is that hijab was never a subject of contention.”

Dave stated, “The whole argument (of the State) so far as a religious practice is concerned is that the Quran does not say you must compulsorily wear…that acknowledges the fact that the Quran does refer to the wearing of a hijab.”

He argued his argument that using it was not the case and that applying an Essential Religious Practice (ERP) test is not the best method of approaching the question. The bench however noted that petitioners had brought the issue up before HC and had even asked for an order to declare it an ERP.

Dave stated, “They say it’s not required. I’m arguing that it’s not. …. If you are a believer are the ones who need it. Those who aren’t believers don’t need to. …. Each religion has a few individuals who are extremely religious. Some even go to the point of being religious fanatics. Certain people are more tolerant. …”

The State has previously argued that just like Triple Talaq which is the legal right of sacrifice animals and the wearing of a hijab is not a fundamental right.

On this issue, an advocate of the highest rank Salman Khurshid said, “There is nothing in the Quran that says a particular animal must be sacrificed.”

Khurshid also stated that the decision of one judge who sits on the SC bench, which found instant triple-talaq illegal “clearly says that the Quran does not provide for triple talaq”. However, there are some exceptions, the judge stated.

The bench then asked why it was discussed before the triple talaq court that it was an ERP.

“Some people argued. I was amicus and said there is no such thing as Islam” Khurshid said.

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