Do All Faiths Accept It? - SC Asks Appellants In Hijab Case Who Argued That Secularism Means 'Ekam Sat Vipra Bahuda Vadanthi'
The Supreme Court is hearing the appeals arising out of the Karnataka High Court's Judgment upholding the restriction imposed by the state on the wearing of Hijab in government schools. The Court will continue the hearing tomorrow. Senior Advocate Devadatt Kamat appearing for some of the Petitioners has not finished his arguments and will continue tomorrow. The Court has agreed to hear the intervenors also.
The Bench comprising of Justice Hemant Gupta and Justice Sudhanshu Dhulia is hearing the batch of appeals.
During the hearing, Senior Advocate Devadatt Kamat argued, "Secularism which your Lordships have interpreted is in contradistinction to secularism in countries like France where there is negative secularism. You cannot display any symbols of religion. Your Lordships have not accepted that", Kamat submitted while dealing with the argument of the state based on secularism.
He then said, "we believe in Ekam Sat Vipra Bahuda Vadanthi (There is only one truth and learned persons call it by many names)". It is a statement from the Upanishads.
"Do all people accept this? Is that statement accepted as true by all faiths in India?" Justice Gupta asked. "I am only saying what your Lordships have said", Kamat replied.
"Secularism does not mean that only students of one faith do not display their identity", Kamat said that is what the state has ordered.
When Kamat cited the example of students wearing Rudraksha and Cross, Justice Gupta objected to citing that as an example stating that Rudraksha or Cross are worn inside the uniform and is concealed. Kamat replied stating that Hijab is also worn in addition to the uniform and permitting it will be positive secularism.
Justice Gupta observed during the hearing that our Constitution was always secular and we followed socialism and the addition of the words 'secularism' and 'socialism' were "political statements".
While commencing his arguments, Kamat told the Court that Senior Advocate Rajeev Dhavan who was to appear for some of the Petitioners is unwell and hence he will start with the arguments on behalf of those Petitioners.
Kamat argued that the state of Karnataka failed in its obligation to provide reasonable accommodation under Articles 19, 21 and 25 of the Constitution. He said that he is not arguing against the prescription of uniforms in schools and that students wearing hijab are also wearing the uniform. He said that Hijab is just a headscarf. When he referred to the Judgment of the Supreme Court in Bijoe Emmanuel's case on singing of national anthem, Justice Dhuila said that the context of the case was different.
Kamat also argued that the headscarf is the same colour as the uniform and the Central Government in Kendriya Vidyalayas has permitted the wearing of the hijab. Kamat also relied upon the South African Judgment allowing a Hindu girl to wear a nose ring.
Justice Hemant Gupta observed during the hearing that no other country is as diverse as India and they have uniform laws for all communities. Kamat agreed.
When Kamat continued reading the South African Judgment, Justice Gupta said, "Mr. Kamat, forget about South Africa, come to India".
Kamat cited judgments of the United States and Canada, Justice Gupta said, "their judgments are based on their society, their thinking is different, we are very conservative. These judgments are given in the context of their society".
Kamat also submitted that the right to expression includes the right to dress. He said that restricting the wearing of a headscarf along with the uniform cannot be termed a reasonable restriction. "You can't take it to illogical lengths, right to dress will also involve a right to undress then", Justice Gupta said. Kamat argued that the grounds for reasonable restrictions under Article 19 will not apply to the case since the state gave up its arguments on 'public order' during the hearing before the High Court.
Kamat also argued that the decision is in violation of the principle of 'decisional autonomy' explained in the Puttuswamy Judgment of the Court. "It's her decision, who are we to question it", Kamat argued.
Advocate General of Karnataka objected to Kamat's submission that High Court compared schools to prisons to compare the rights of students to prisoners. Kamat then read out the impugned judgment to make good his submission. However, the Bench did not agree with Kamat about his interpretation of what the High Court said. "It's just a way of expressing, it does not compare", Justice Gupta said.
Kamat also argued that prohibiting Hijab violates the right to education. Kamat then argued that the state's decision is in violation of Article 25. He submitted that tests under Articles 25(1) or 25(2) for restrictions are not satisfied.
Kamat is to commence his arguments about the Essential Religious Practices tomorrow.
Last week, the Bench had expressed displeasure over the prayer of the Petitioners for adjournment and had said, "This is not acceptable. You wanted urgent listing and when the matter is listed, you are seeking adjournment. We will not permit forum shopping". Accordingly, the Court had listed the matter for today.
The judgment passed by the Karnataka High Court on March 15 has been challenged by a batch of petitions filed in the Apex Court.
The Karnataka High Court had in the impugned judgment dismissed the writ petitions and held that hijab is not an essential religious practice in the Islamic faith. The High Court had also held that the prescription of school uniform is a reasonable restriction, constitutionally permissible and that the Government had the power to pass Government Orders and there was no case made out for the invalidation of that order. The order was challenged in the Supreme Court and was mentioned on several occasions.
On March 24, a bench of the then Chief Justice of India N. V. Ramana and Justice Krishna Murari had refused listing of the cases upon mentioning by Senior Advocate Devadatt Kamat. Kamat submitted to the Court that, "The urgency is that the exams are starting from the 28th of March and the girls are not allowed inside the school." He had further submitted that the whole year of the girls will go in vain. The Chief Justice of India had said, dismissing his submission, "Do not sensitize the issue, it has nothing to do with the exams."