No hijab demand for years, PFI movement part of larger conspiracy, SC told

“Far-fetched arguments (were made) that the government is…throttling the voice of the minorities. No. The government had to enter because of the circumstances created,” he told a bench of Justices Hemant Gupta and Sudhanshu Dhulia.

Taking the court through the time-line of events, 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 for saffron shawl,” he said. “In 2022, a movement started on social media by an organisation called the Popular Front of India. The movement — as the FIR lodged subsequently suggested — was designed to create a kind of an agitation based on religious feelings of people, and as a part, there were continuous social media messages that (said), start wearing hijab.”

This, 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 said the State had placed relevant material in this connection before the High Court.

“We pointed out that this sudden upsurge by the children is not their own original thinking. There was no problem, no one was wearing hijab since at least 2004, as recorded by HC. Suddenly (an) agitation broke out and it culminated with some students and parents demanding the right to wear it in classrooms…” he told the court.

Mehta said some students moved the HC even before the state government had taken a decision.

The court pointed out that one petitioner-student had contended that she was wearing a hijab but had to suddenly stop it. Mehta termed it an “unsubstantiated assertion”.

Mehta said the government had to intervene because public order was likely to be breached.

“If the government would not have acted the way it did, it would have been guilty of dereliction of constitutional duties,” he submitted.

He said the Government Order of February 5, 2022 “was required for more than one justifiable reason. This is not an order which prevents students from a particular community from wearing a particular apparel.”

The Muslim appellants had contended that wearing of hijab was sanctioned by the Quran and is an essential religious practice in Islam. Mehta, however, said there is a procedure laid down by courts to establish this by citing compelling reasons, but the parties failed to do so.

He said, “They could have said that 90 percent people are doing this…so it’s compelling. If this doesn’t happen, I will be ex-communicated…. (But) merely mentioning that Holy Quran mentions wearing of hijab would not make it an essential religious practice — it will make it either a permissible religious practice or an ideal religious practice at the most. For being declared [essential] by the court of law, you will have to say it is so compelling…”

He said: “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 pointed out that the HC had gone into the question of essential religious practice because the petitioners had moved court raising violation of such rights. “Therefore the court laid down this test. Does it exist from time immemorial? I take it that the Holy Quran mentions it. Is it so compelling? (If so) have you given any evidence…have you given any pleading that in every country where this particular religion is followed, 95 percent of the women are wearing hijab?”\

Pointing out India is a secular nation, Mehta said, “As a matter of fact, where nations are by their constitution Islamic, like Iran, women are not wearing hijab. They are fighting against hijab. They are revolting 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 pointed out that it had been told that in Muslim law, women can’t go out unattended, and that there has to be a male to accompany her.

To a query from the bench, Mehta said the HC would have been well advised to not go into the question of essential religious practice, but the petitioners themselves had raised it. If the HC had not dealt with it, he argued, fingers would have been pointed at it.

Justice Dhulia said: “Not only could it have been avoided, but another thing which is very apparent in the judgment is, when judges are coming to a conclusion, whether something is essential religious practice, they…rely upon commentaries. And then they say it’s authentic…. Second, when the other side gives them another commentary, it is said that there is nothing authentic…”

Mehta responded, “That’s exactly where the problem lies. One thing can have five different commentaries, giving five different perceptions.”

On appellants’ argument that not just essential religious practice, but all religious practices are protected, Mehta termed it “constitutionally fallacious”. He said, “SC judgments never intended that whatever you say is my religious practice, is protected. We would then be going into a chaotic situation. The Constitution would never have envisaged it.”

Earlier in the hearing, senior advocate Dushyant Dave, appearing for the appellants, said the state government had said in a circular before the academic session began that uniform is not mandatory. He also said that “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 dignified has changed with time. It keeps changing”.