Karnataka hijab ban: State linked PFI to case to prejudice case, SC told

“I regret to say that the Solicitor General raised that issue,” senior advocate Dushyant Dave, appearing for some of the appellants, told the court. “It is not an issue which is relevant at all for the purpose of determination here. I further regret to say that he (S-G Tushar Mehta) having raised it, the entire media picked it up.”

Senior advocate Huzefa Ahmadi also took exception to the State invoking PFI’s name and said this was not pleaded before the High Court, and is not there in the circular.

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

Pointing out that the State had consciously not filed a rejoinder before SC, he argued, “If they want to rely on something, they cannot do it orally. First they consciously said they don’t want to file a counter….now the attempt is to bring in facts which are not part of the record at all before the court…by saying there is an overarching conspiracy.”

Stating that there was “nothing in the circular with regard to PFI”, Ahmadi said the argument is being “sought to be introduced only…to prejudice”.

Their reference was to Mehta’s submissions that the protests over restrictions on wearing of hijab were “not spontaneous” but were “part of a larger conspiracy”. He had said that “at least from 2013, nobody was deviating from the prescribed uniform, which did not include hijab”.

He submitted that “in 2022, a movement started on social media by an organisation called the Popular Front of India and the movement — as the FIR which was lodged subsequently suggested — was designed to create a kind of an agitation based on religious feelings of the people, and as a part, there were continuous social media messages — (to) start wearing hijab…”

Dave sought to link it to comments on Wednesday by an SC bench headed by Justice K M Joseph about alleged hate speech through visual media.

He said that “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 said that after 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 had said this in the context of explaining the background.

Dave said the state government’s “circular” under challenge “doesn’t refer to that”. He added, “You can’t bring something outside the circular. That’s completely wrong.”

Dave also sought to question the state government over an earlier circular, which he pointed out had said that uniform is not compulsory.

Countering the state government’s submission that the document is unsubstantiated, he said it was mentioned in the counter-affidavit filed before HC. “Solicitor General said it’s an unsubstantiated document. My submission is that it is substantiated by their own admission before the High Court. How do you disown your own guidelines by saying this? You have issued it consciously,” Dave said.

The bench pointed out that the subsequent circular will “supersede” the earlier one.

Not agreeing, Dave said the earlier circular mentions wearing of uniform is not compulsory and argued that “there is no question of it superseding the earlier guidelines”.

But Justice Dhulia said “it does”, and added 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”.

Countering Dave’s arguments, Additional Solicitor General K M Nataraj also said the guidelines “do not confer any kind of right on anybody. These are just guidelines. That cannot supersede any statutory notification…”

The court asked Dave if it was his case that there was no uniform prescribed for students for the academic year 2021-22. The senior counsel responded, “It’s not our case. Our case is that hijab was never objected to.”

Dave said, “The whole argument (of the State) so far as 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 contended that the Essential Religious Practice (ERP) test is not the right way of looking at the issue. The bench, however, reminded that the petitioners themselves had raised the issue before HC, and even sought a mandamus to declare it an ERP.

Dave said, “They say it’s not compulsory. I submit it’s not necessary…. Those who are believers, for them it’s essential. Those who are not believers, it’s not essential…. Every religion has some people who are very strongly religious. Some people go to the extent of being fanatics. Some people are tolerant…”

The State had earlier argued that like triple talaq or the right to animal sacrifice, the right to wear hijab is also not a fundamental right.

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

Khurshid also said that the judgment of one of the judges on the SC bench that declared instant triple talaq unconstitutional “clearly says that the Quran does not provide for triple talaq”. Whatever is there was an exception, he added.

The bench asked why then was it argued before the triple talaq bench that it is an ERP.

“Some people argued. I was amicus and said it does not exist in Islam”, said Khurshid.