The government pointed out the fact that “women are revolting” against the hijab, even within constitutionally Islamic countries like Iran and Iran, the Karnataka state government informed the Supreme Court that what unfolded in the state prior to when college development committees imposed a ban on hijab in their respective institutions of higher learning wasn’t “spontaneous” but “part of a larger conspiracy”.
As a State representative Solicitor General Tushar Mehta also rebutted arguments about the intent behind the decision meant to be targeted at minorities and claimed that the State was forced to intervene as a result of the circumstances that were caused by the ban.
“Far-fetched arguments (were presented) to suggest that government is…throttling the voices of minorities. No. The government was forced to enter due to the circumstances that were caused,” he told a justices’ bench composed comprising Justices Hemant Gupta and Sudhanshu Dhulia.
The court was able to go through the chronology of things, Mehta said that “at least from 2013, nobody was deviating from the prescribed uniform, which did not include the hijab”.
“Neither anybody was insisting on wearing a hijab, nor was anybody insisting on the saffron shawl,” he added. “In 2022, a trend was launched via social media and was initiated by an organization known as”the Popular Front of India. The movement, as the FIR later indicated — was conceived to provoke an uproar based on the faith-based feelings of individuals, and, as a result of it, there were constant social media posts that (said)”You should start wearing hijab.”
The incident, Mehta submitted, was “not a spontaneous act of a few individual children…they were part of a larger conspiracy, and the children were acting as advised.” He claimed that the State had brought relevant evidence concerning this issue to the High Court.
“We have pointed out that this sudden increase of children’s hijab isn’t their original thought process. There was no issue with the dress code, and nobody was wearing hijab before at least 2004 as reported by HC. Then (an) anger erupted and culminated in students and parents requesting permission to dress in the hijab in school, …” he informed the court.
Mehta claimed that some students left the HC after the government of the State made a decision.
The court noted that a petitioner-student claimed it was because she was in a hijab, but she was forced to abruptly stop wearing the hijab. Mehta called it an “unsubstantiated assertion”.
Mehta stated that the government needed to intervene as public order could be violated.
“If the government would not have acted the way it did, it would have been guilty of dereliction of constitutional duties,” the lawyer declared.
He claimed that”the Government Order of February 5 2022 “was necessary to be issued for more than one legitimate reason. It is not an order that bars students of a certain group from wearing certain dress.”
The Muslim plaintiffs had claimed that wearing a hijab was approved through the Quran and is a fundamental religion in Islam. Mehta however, stated that there was a procedure set by the courts to prove this, citing compelling arguments however, the parties were unable to follow the procedure.
He stated, “They could have said that 90% of the population is doing this…so it’s a compelling argument. If this isn’t the case I’ll be excommunicated. …. (But) just mentioning that Holy Quran mentions wearing of hijab will not make it an essential part of the religion in fact, it would make it an acceptable religious practice or a perfect way to practice religion, at best. In order to be declared “essential” by a court of law, you’ll need to prove that this is so important …”
He added: “For (it to be declared) essential (religious practice), the threshold is higher…and when you assert that right and seek to prevent the government from exercising its statutory power and the school from its duty to make everyone equal, then you will have to plead…that it is so compelling that you cannot live without it; not that it is permissible in religion.”
He also pointed out that the HC went into the matter of the essential religion because petitioners had filed an application to the court to challenge violations of these rights. “Therefore the court formulated the test. Does it have a history dating back to time immemorial? I believe that it is mentioned in the Holy Quran mentions it. Do you think it is so persuasive? (If it is) have you offered any evidence…have you made any argument that in every country in which the particular religious tradition is observed more than 95 percent of women wear hijabs?”
Then, pointing out that India is a secular state, Mehta said, “As an actual fact when nations have constitutions that are Islamic like Iran women aren’t wearing hijab. They are protesting against hijab. They are protesting against hijab.”
The S-G said, “If my interpretation of a particular holy book is taken to be the sole basis of deciding whether it is essential for me or not, there may be many things in there that may be prohibited in law”.
The court emphasized that it was informed that, under Muslim law, women cannot leave the house without supervision and that there needs at least one male to accompany her.
To a question by the judge, Mehta stated that the HC would have been wise to avoid addressing the subject of the essentiality of faith, but that the petitioners themselves addressed the issue. If the HC had not addressed the issue, he said that fingers were pointed toward it.
Justice Dhulia said: “Not but it could be prevented, but another aspect that is clear in the ruling is that when judges come to the conclusion that something is a fundamental religious practice, they…rely upon commentaries. Then they declare it to be genuine. …. Then, when the opposing side offers another comment the other side says that there’s nothing authentic …”
Mehta replied, “That’s exactly where the issue is. One thing could be the subject of five different perspectives, which gives five different perspectives.”
The argument of appellants that not only fundamental religious practices but every religious practice is secured, Mehta termed it “constitutionally fallacious”. He stated, “SC rulings were never meant to mean that what you think is my religion is protected. Then we’d be thrown into a mess. The Constitution could never have imagined it.”
In the previous hearing during hearing, the senior attorney Dushyant Dave, appearing for the appellants, stated that it was the government of India that announced in a notice prior to the start of the academic session that the wearing of uniforms is not compulsory. The lawyer also stated it was because the “hijab adds to dignity” of women. “It makes a lady very dignified when she wears a hijab; like a Hindu woman when she covers her head with a saree, it’s very dignified.”
Justice Gupta however responded that the “definition of dignity has changed over time. It’s always evolving”.